Mendonca v Matthews Folbigg Pty Ltd [2021] NSWSC 554

Mendonca v Matthews Folbigg Pty Ltd [2021] NSWSC 554

Leave to file the proposed Further Amended Statement of Claim was refused because the proposed pleading would necessarily require relitigation of Dr Mendonca's intention and understanding in the Galston property transactions, and would assert factual matters contrary to findings made by Ward CJ in Eq in the 2019 judgment. Those issues were determined in earlier proceedings or were so connected with those proceedings that it was unreasonable not to raise the claim then. The proposed claim was therefore precluded by issue estoppel and Anshun estoppel, or alternatively was an abuse of process. The existing Amended Statement of Claim was struck out as an abuse of process.

Jurisdiction
Australia
Judgment Date
21 May 2021
Procedural Posture
Common Law Proceedings Alleging Professional Negligence and Related Breaches Against Solicitors / Determination of Defendants' Motion to Dismiss, Permanently Stay or Strike Out the Amended Statement of Claim and Plaintiff's Motion for Leave to File a Further Amended Statement of Claim
Outcome
Plaintiff refused leave to file a Further Amended Statement of Claim; Amended Statement of Claim struck out; plaintiff ordered to pay defendants' costs subject to further submissions.
Legal Topics
['strike Out' 'leave to Amend Pleadings' 'anshun Estoppel' 'issue Estoppel' 'abuse of Process' 'solicitors Acting for Both Parties' 'resulting Trust']
['practice and Procedure' 'professional Negligence' 'equity'] ['strike Out' 'leave to Amend Pleadings' 'anshun Estoppel' 'issue Estoppel' 'abuse of Process' 'solicitors Acting for Both Parties' 'resulting Trust']

Case Brief

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Procedural Posture

Common Law Proceedings Alleging Professional Negligence and Related Breaches Against Solicitors / Determination of Defendants' Motion to Dismiss, Permanently Stay or Strike Out the Amended Statement of Claim and Plaintiff's Motion for Leave to File a Further Amended Statement of Claim

Legal Issues

  1. 1 ['Whether the plaintiff should be granted leave to file the proposed Further Amended Statement of Claim.' 'Whether the proposed claim would relitigate factual matters already determined in Tonna v Mendonca [2019] NSWSC 1849.' 'Whether issue estoppel or Anshun estoppel precluded the plaintiff from advancing the proposed claim.' 'Whether advancing the proposed claim would be an abuse of process.' 'Whether the Amended Statement of Claim should be struck out.']

Ratio Decidendi

Leave to file the proposed Further Amended Statement of Claim was refused because the proposed pleading would necessarily require relitigation of Dr Mendonca's intention and understanding in the Galston property transactions, and would assert factual matters contrary to findings made by Ward CJ in Eq in the 2019 judgment. Those issues were determined in earlier proceedings or were so connected with those proceedings that it was unreasonable not to raise the claim then. The proposed claim was therefore precluded by issue estoppel and Anshun estoppel, or alternatively was an abuse of process. The existing Amended Statement of Claim was struck out as an abuse of process.

Court Disposition

Plaintiff refused leave to file a Further Amended Statement of Claim; Amended Statement of Claim struck out; plaintiff ordered to pay defendants' costs subject to further submissions.

Orders

  • ['Leave to the plaintiff to file a Further Amended Statement of Claim is refused.' 'The Amended Statement of Claim filed on 15 July 2020 is struck out.' "Subject to order (4), the plaintiff is to pay the defendants' costs as agreed or assessed." 'If any party seeks a different order as to costs written submissions...