Sywak v Visnic [2010] NSWSC 222

Sywak v Visnic [2010] NSWSC 222

The subject matter and cause of action in the present proceedings differ from the prior trust proceedings, as the current action for contribution between co-guarantors under the 1996 Deed was not litigated or decided previously; thus, neither cause of action estoppel nor Anshun estoppel applies, and there is no abuse of process in maintaining the proceedings.

Parties
Plaintiff: Peter Orest Sywak; Defendant: Milan Visnic
Jurisdiction
Australia
Judgment Date
05 March 2010
Procedural Posture
Equity Proceeding / Interlocutory Decision on Amended Notice of Motion
Outcome
Paragraphs 2 and 3 of the defendant's amended notice of motion dismissed.
Legal Topics
Equitable Doctrines and Presumptions, Permanent Stay of Proceedings, Cause of Action Estoppel, Anshun Estoppel, Abuse of Process, Contribution Between Co Guarantors
Equity Equitable Doctrines and Presumptions Permanent Stay of Proceedings Cause of Action Estoppel Anshun Estoppel Abuse of Process Contribution Between Co Guarantors

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Parties

Peter Orest Sywak

Plaintiff

Milan Visnic

Defendant

Procedural Posture

Equity Proceeding / Interlocutory Decision on Amended Notice of Motion

Legal Issues

  1. 1 Whether cause of action estoppel bars current proceedings
  2. 2 Whether Anshun estoppel applies to prevent current proceedings
  3. 3 Whether proceedings constitute an abuse of process

Ratio Decidendi

The subject matter and cause of action in the present proceedings differ from the prior trust proceedings, as the current action for contribution between co-guarantors under the 1996 Deed was not litigated or decided previously; thus, neither cause of action estoppel nor Anshun estoppel applies, and there is no abuse of process in maintaining the proceedings.

Court Disposition

Paragraphs 2 and 3 of the defendant's amended notice of motion dismissed.

Orders

  • Paragraphs 2 and 3 of the amended notice of motion seeking a permanent stay and dismissal of proceedings are dismissed.
  • Costs to follow the event unless contested.