Tringas, G. & Anor v Ansett Transport Industries (Operations) Pty Ltd & Anor [1986] FCA 140

Tringas, G. & Anor v Ansett Transport Industries (Operations) Pty Ltd & Anor [1986] FCA 140

The prior dismissal by consent of Newtons' claims constituted a bar to the applicants amending their pleadings or raising, by way of defence or set-off, the same cause of action previously pursued by Newtons. Even where applicants seek to rely on a guarantor's equitable right of set-off due to the principal debtor's insolvency, that right cannot override the principle that a cause of action, once merged in judgment, cannot be raised by other parties. Leave to amend was therefore refused.

Parties
Applicant: George Tringas; Applicant: Stavroula Tringas; Respondent: Ansett Transport Industries (Operations) Pty. Ltd.; Respondent: Ansett Transport Industries Limited
Jurisdiction
Australia
Judgment Date
02 December 1986
Procedural Posture
Civil / Interlocutory Motion – Application for Leave to Amend Pleadings
Outcome
Motion by applicants refused with costs
Legal Topics
Amendment of Statement of Claim, Security for Costs, Guarantor's Rights in Insolvency, Merger of Cause of Action, Section 52 Trade Practices Act
Practice and Procedure Trade Practices Amendment of Statement of Claim Security for Costs Guarantor's Rights in Insolvency Merger of Cause of Action Section 52 Trade Practices Act

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Parties

George Tringas

Applicant

Stavroula Tringas

Applicant

Ansett Transport Industries (Operations) Pty. Ltd.

Respondent

Ansett Transport Industries Limited

Respondent

Procedural Posture

Civil / Interlocutory Motion – Application for Leave to Amend Pleadings

Legal Issues

  1. 1 Whether applicants can amend pleadings to rely on a cause of action previously dismissed by consent against another party
  2. 2 Whether prior interlocutory order dismissing Newtons' claim bars the applicants from raising the same cause of action
  3. 3 Whether equity entitles guarantors to set-off claims of principal debtor in liquidation against creditor's cross-claim under the guarantee

Ratio Decidendi

The prior dismissal by consent of Newtons' claims constituted a bar to the applicants amending their pleadings or raising, by way of defence or set-off, the same cause of action previously pursued by Newtons. Even where applicants seek to rely on a guarantor's equitable right of set-off due to the principal debtor's insolvency, that right cannot override the principle that a cause of action, once merged in judgment, cannot be raised by other parties. Leave to amend was therefore refused.

Court Disposition

Motion by applicants refused with costs

Orders

  • The motion brought by the applicants and dated 25 November 1985 is refused, with costs to be taxed.