Zavodnyik & Ors v Alex Constructions Pty Ltd [2005] NSWCA 438

Zavodnyik & Ors v Alex Constructions Pty Ltd [2005] NSWCA 438

There was a cause of action estoppel (and alternatively an Anshun estoppel) barring the builder's restitution claim in the District Court; the subject matter and evidence substantially overlapped with the previous Tribunal proceedings, and it would have been reasonable and expected for the respondent to have raised all claims in the prior proceedings. The fact that the restitution claim had not been adjudicated on the merits was not decisive, and both estoppels applied, thus the District Court action should be summarily dismissed.

Parties
First Appellant: John Zavodnyik; Second Appellant: Hanka Zavodnyik; Third Appellant: Graviplex Pty Ltd; Respondent: Alex Constructions Pty Ltd
Jurisdiction
Australia
Judgment Date
09 December 2005
Procedural Posture
Appeal / Court of Appeal Judgment
Outcome
Appeal allowed; District Court action summarily dismissed.
Legal Topics
Res Judicata, Cause of Action Estoppel, Anshun Estoppel, Restitution, Building Contracts, Unlicensed Builder
Civil Procedure Building and Construction Law Res Judicata Cause of Action Estoppel Anshun Estoppel Restitution Building Contracts Unlicensed Builder

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Parties

John Zavodnyik

First Appellant

Hanka Zavodnyik

Second Appellant

Graviplex Pty Ltd

Third Appellant

Alex Constructions Pty Ltd

Respondent

Procedural Posture

Appeal / Court of Appeal Judgment

Legal Issues

  1. 1 Whether a cause of action estoppel and/or Anshun estoppel arose preventing the respondent from pursuing a restitution claim in the District Court after proceedings on the contract in the Tribunal
  2. 2 Whether the subject matter of the District Court proceedings properly belonged in the previous Tribunal proceedings
  3. 3 Whether alternative remedies in contract and restitution could be pursued in separate proceedings

Ratio Decidendi

There was a cause of action estoppel (and alternatively an Anshun estoppel) barring the builder's restitution claim in the District Court; the subject matter and evidence substantially overlapped with the previous Tribunal proceedings, and it would have been reasonable and expected for the respondent to have raised all claims in the prior proceedings. The fact that the restitution claim had not been adjudicated on the merits was not decisive, and both estoppels applied, thus the District Court action should be summarily dismissed.

Court Disposition

Appeal allowed; District Court action summarily dismissed.

Orders

  • Appeal allowed with costs.
  • Orders of the District Court of 28 June 2004 set aside.