Cancian Nominees Pty Ltd v Dib Group Pty Ltd [2015] NSWSC 1072

Cancian Nominees Pty Ltd v Dib Group Pty Ltd [2015] NSWSC 1072

Grounds 1 to 4 were untenable because they sought to reopen the correctness of Dib (No 1) and the binding direction made on remitter, contrary to principles of finality and res judicata, where no appeal had been brought and the plaintiff had participated in the Local Court rehearing. Grounds 5 to 7 were untenable insofar as they related to Dib's conversion claim because, on remitter, Cancian raised only quantum on that claim. However, grounds concerning rejection of Cancian's conversion claim could be arguable if framed consistently with Dib (No 1) and the direction. The motion therefore justified partial strike out, not summary dismissal of the whole summons.

Jurisdiction
Australia
Judgment Date
31 July 2015
Procedural Posture
Local Court Appeal Under Ss 39 to 41 of the Local Court Act 2007; Notice of Motion for Summary Dismissal or Strike Out / Interlocutory Motion in the Supreme Court of New South Wales
Outcome
The defendant's notice of motion was allowed in part: grounds 1 to 7 and 11 were struck out, leave to re-plead was granted only in limited respects, the motion was otherwise dismissed, and the plaintiff was ordered to pay 70 per cent of the defendant's costs of the motion on the ordinary basis.
Legal Topics
['summary Judgment' 'strike Out' 'abuse of Process' 'finality of Litigation' 'res Judicata' 'conversion' 'remitter to Local Court']
['civil Procedure' 'local Court Appeals' 'torts'] ['summary Judgment' 'strike Out' 'abuse of Process' 'finality of Litigation' 'res Judicata' 'conversion' 'remitter to Local Court']

Case Brief

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Procedural Posture

Local Court Appeal Under Ss 39 to 41 of the Local Court Act 2007; Notice of Motion for Summary Dismissal or Strike Out / Interlocutory Motion in the Supreme Court of New South Wales

Legal Issues

  1. 1 ["Whether grounds 1 to 4 of the plaintiff's summons impermissibly sought to re-agitate the correctness of Dib Group Pty Ltd v Cancian Nominees Pty Ltd [2013] NSWSC 1878 and the direction given on remitter." 'Whether grounds 5 to 8 were untenable because they challenged matters foreclosed by the earlier Supreme Court judgment or because they had not been raised on remitter in the Local Court.' "Whether the defendant's notice of motion should result in summary dismissal or partial strike out of the plaintiff's summons." "What costs order should be made on the defendant's notice of motion."]

Ratio Decidendi

Grounds 1 to 4 were untenable because they sought to reopen the correctness of Dib (No 1) and the binding direction made on remitter, contrary to principles of finality and res judicata, where no appeal had been brought and the plaintiff had participated in the Local Court rehearing. Grounds 5 to 7 were untenable insofar as they related to Dib's conversion claim because, on remitter, Cancian raised only quantum on that claim. However, grounds concerning rejection of Cancian's conversion claim could be arguable if framed consistently with Dib (No 1) and the direction. The motion therefore justified partial strike out, not summary dismissal of the whole summons.

Court Disposition

The defendant's notice of motion was allowed in part: grounds 1 to 7 and 11 were struck out, leave to re-plead was granted only in limited respects, the motion was otherwise dismissed, and the plaintiff was ordered to pay 70 per cent of the defendant's costs of the motion on the ordinary basis.

Orders

  • ["Grounds 1 to 7 and 11 of the plaintiff's summons be struck out." "The plaintiff be granted leave to re-plead grounds 5 to 7 and 11, but only insofar as they relate to the dismissal of the plaintiff's cross-claim in the Local Court." "The defendant's notice of motion filed 25 February 2015 be otherwise dismissed."...