Livingstone v Mitchell [2020] NSWSC 1464

Supreme Court New South Wales

Medium Neutral Citation: Livingstone v Mitchell [2020] NSWSC 1464 Hearing dates: 16 October 2020; written submissions 19, 21 October 2020 Decision date: 21 October 2020 Jurisdiction: Common Law Before: Adamson J Decision: (1) Grant leave to appeal. (2) Allow the appeal. (3) Set aside the orders made by Day LCM on 12 May 2020. (4) In lieu of the orders made by Day LCM on 12 May 2020: (a) dismiss the proceedings in so far as they claim consultancy payments or rates payments alleged to have become due and payable before 4 October 2017. (b) direct the plaintiffs (Elizabeth and Robert Mitchell) to file an amended statement of claim in the Local Court which reflects the order in (4)(a). (c) order the plaintiffs (Elizabeth and Robert Mitchell) to pay the defendant's (Ms Livingstone's) costs of the notice of motion. (d) remit the matter to the Local Court for the determination of the proceedings. (5) Subject to an application for a different order being made by written application to my Associate within seven days, order the defendants (Elizabeth and Robert Mitchell) to pay the plaintiff's (Ms Livingstone's) costs of the proceedings. Catchwords: ESTOPPEL — Anshun estoppel — Decisions to which applicable — No adjudication on the merits — Where proceedings were commenced in Supreme Court and subsequently settled — Where related proceedings were commenced in Local Court — Where Plaintiff's motion to dismiss or strike out Local Court proceedings was dismissed — Whether magistrate erred in statement and application of Anshun estoppel — Whether magistrate erred by failing to find that Local Court proceedings constituted an abuse of process — Effect of Civil Procedure Act 2005 (NSW) s 91 APPEALS — Procedural fairness — Hearing rule — Whether magistrate failed to afford procedural fairness by taking into account documents which had not been admitted into evidence — Whether error was material APPEALS — Leave to appeal — Importance of finality of litigation — Effect of amount in dispute Legislation Cited: Civil Procedure Act 2005 (NSW), s 91 Local Court Act 2007 (NSW), ss 39–41 Uniform Civil Procedure Rules 2005 (NSW), r 42.1 Cases Cited: Bazos v Doman [2001] NSWCA 347 Cannuli v Cannuli [2018] NSWSC 937 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 Ekes v Commonwealth Bank of Australia [2014] NSWCA 336; (2014) 313 ALR 665 Johnson v Gore Wood & Co [2002] 2 AC 1 NSW Trustee & Guardian v Philpott [2017] NSWSC 472 Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589; [1981] HCA 45 R&J Lyons Family Settlement Pty Ltd v 155 Macquarie Street Pty Ltd [2008] NSWSC 232 Rojanasaroj v Rachan (No 2) [2011] WASC 271 Running Pigmy Productions Pty Ltd v AMP General Insurance Co Ltd [2001] NSWSC 431 Seidler v University of New South Wales [2011] FCA 640 Snowy Mountains Organic Dairy Products Pty Ltd v Wholefoods Pty Ltd (2008) 21 VR 43; [2008] VSC 405 Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54 Whelan Kartaway Pty Ltd v Donnelly [2012] VSC 45 Category: Principal judgment Parties: Angela Kay Livingstone (Plaintiff) Elizabeth May Mitchell (First Defendant) Robert Gordon Mitchell (Second Defendant) Representation: Counsel: P Boncardo (Plaintiff) A Crossland / J Widjaja (Defendants)