R&J Lyons Family Settlement Pty Ltd v 155 Macquarie Street Pty Ltd [2008] NSWSC 232

New South Wales Supreme Court

CITATION : R&J Lyons Family Settlement Pty Ltd v 155 Macquarie Street Pty Ltd [2008] NSWSC 232

HEARING DATE(S) : 17/9/07-21/9/07

JUDGMENT DATE : 11 April 2008

JURISDICTION : Equity

JUDGMENT OF : Bryson AJ

(1) Order pursuant to UCPR 13.4 DECISION : that the proceedings be dismissed. (2) The plaintiffs are to pay the defendants' costs of the Notice of Motion of 18 August 2006 and of the proceedings generally.

CATCHWORDS : PRACTICE and PROCEDURE - summary disposal - Anshun defence where additional claim made in Federal Court when other claims arising from same transactions were pending in Supreme Court - plaintiffs' claims in Supreme Court had been commenced under earlier Deed of Release which required proceedings to be brought within defined time in Supreme Court and released other claims - plaintiffs' claims in Supreme Court proceedings were released for large payment under Settlement Deed - on review of facts, held that the plaintiffs acted unreasonably in bringing Federal Court proceedings, which should be summarily dismissed: alternatively, stayed as abuse of process

LEGISLATION CITED : Trade Practices Act 1974 (Cth) s.82, 87

Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 Cromwell v County of Sac (1876) 94 US 351 Currabubula Holding Pty Ltd v Mita Copiers Australia Pty Ltd (FCA Burchett J unreported 5 May 1995) Custombuilt Homes Pty Ltd v Dowell [2005] WASCA 221 Henderson v Henderson by Wigram VC (1843) 3 Hare 100 CASES CITED : Johnson v Gore Wood & Co. [2002] 2 AC 1 at 59 Port of Melbourne Authority v Anshun Pty Ltd [No.1] (1981) 147 CLR 589 Tanning Research Laboratories Inc. v O'Brien (1990) 169 CLR 332 Triantafillidis v National Australia Bank (1995) V ConvR 54-536 Walton v Gardiner (1993) 177 CLR 378 Zavodyix v Alex Constructions Pty Ltd [2005] NSWCA 438