Kovarfi v BMT & Associates Pty Ltd (No 3) [2017] NSWSC 710

Kovarfi v BMT & Associates Pty Ltd (No 3) [2017] NSWSC 710

The present proceedings were, in substance, an attempt to reagitate the Second Common Law Proceedings, which Campbell J had summarily disposed of in February 2014. The allegations of fraud, dishonesty and deliberate false statements did not materially alter the underlying claim, which remained that an incorrect statement was made by the first defendant to CBA causing loss to the Kovarfis. The s 129AA point was available to be raised before Campbell J, and finality required that the plaintiff not relitigate the claim. The proceedings were therefore an abuse of process and were dismissed.

Jurisdiction
Australia
Judgment Date
31 May 2017
Procedural Posture
Civil Proceedings Claiming Damages Arising From Quantity Surveyor Certifications and a Cost to Complete Report / Defendants' Application for Summary Disposal, Stay or Strike Out; Plaintiff's Application for Leave to Amend; Ex Tempore Judgment
Outcome
Proceedings dismissed.
Legal Topics
['abuse of Process' 'relitigation' 'summary Disposal' 'stay Pending Payment of Costs' 'fraudulent Concealment' 'cause of Action Based on Fraud' 'duty of Care' 'deceit']
['civil Procedure' 'limitation of Actions' 'bankruptcy' 'torts'] ['abuse of Process' 'relitigation' 'summary Disposal' 'stay Pending Payment of Costs' 'fraudulent Concealment' 'cause of Action Based on Fraud' 'duty of Care' 'deceit']

Case Brief

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Procedural Posture

Civil Proceedings Claiming Damages Arising From Quantity Surveyor Certifications and a Cost to Complete Report / Defendants' Application for Summary Disposal, Stay or Strike Out; Plaintiff's Application for Leave to Amend; Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether the proceedings were hopeless or statute barred so as to justify summary dismissal or strike out before defence and reply pleadings were filed.' 'Whether the proceedings were an abuse of process because they sought to relitigate claims in substance already disposed of in the Second Common Law Proceedings.' 'Whether changing the allegation concerning the Cost to Complete report from misleading and deceptive conduct to fraud or dishonesty made a relevant difference to the cause of action.' "Whether, if the proceedings were not dismissed, they should be stayed pending payment of costs of earlier proceedings under UCPR r 12.10 or the Court's inherent jurisdiction." 'Whether the plaintiff should have leave to amend her Statement of Claim.']

Ratio Decidendi

The present proceedings were, in substance, an attempt to reagitate the Second Common Law Proceedings, which Campbell J had summarily disposed of in February 2014. The allegations of fraud, dishonesty and deliberate false statements did not materially alter the underlying claim, which remained that an incorrect statement was made by the first defendant to CBA causing loss to the Kovarfis. The s 129AA point was available to be raised before Campbell J, and finality required that the plaintiff not relitigate the claim. The proceedings were therefore an abuse of process and were dismissed.

Court Disposition

Proceedings dismissed.

Orders

  • ['The proceedings are dismissed.' "The plaintiff is to pay the defendants' costs of the proceedings on the ordinary basis."]