Wakim v Tadros [2011] NSWSC 308

Supreme Court New South Wales

Medium Neutral Citation: Wakim v Tadros [2011] NSWSC 308 Hearing dates: Thursday, 7 October 2010 Decision date: 15 April 2011 Jurisdiction: Equity Division Before: Associate Justice Macready Decision: I direct the parties to bring in short minutes and argue costs. The short minutes should provide for: 1. Each party to pay their own costs in relation to the plaintiff's motion filed 10 July 2008, seeking to restrain Mr Lahood from acting as solicitor for the other defendants in the proceedings. 2. The plaintiff is granted leave to file an amended statement of claim in the form attached to the Affidavit of Mr Ling dated 14 May 2010 and filed 20 May 2010. 3. The second to eighth defendant's motions to strike out or have dismissed for want of prosecution, the plaintiff's statement of claim and Mr Tadros' cross claim, pursuant to rules 12.7 and 14.28 of the Uniform Civil Procedure Rules 2005 (UCPR) are dismissed. 4. The cross claim is stayed pending payment of costs of the Federal Court (NSD1924 of 2006) proceedings that are now registered as a judgment in this court in the amount of $15,891.32. 5. Directions as to the further conduct of the matter. Catchwords: PROCEDURE - civil - pleadings - statement of claim - applications to dismiss for want of prosecution or to strike out statement of claim - considerations of delay, prejudice, whether current pleadings were improper - proposed amendment to statement of claim - application to dismiss cross claim - cross claim substantially repeats a statement of claim that was struck out by the Federal Court - whether res judicata or issue estoppel exists - whether Federal Court proceedings that were dismissed pursuant to s 31A Federal Court of Australia Act 1976 were interlocutory - whether Supreme Court has jurisdiction to consider application to stay cross claim pending payment of costs in Federal Court proceedings - application to dismiss proposed amended cross claim - whether proposed cross claim statute barred - whether causes of action arise from the same or substantially the same facts as those in the existing cross claim Legislation Cited: Civil Procedure Act 2005, ss 4, 22(2), 56, 57, 58, 64(2), 65 (2)(c), 67 Federal Court of Australia Act 1976 (Cth), s 31A Limitation Act 1969, s 55 Uniform Civil Procedure Rules 2005, sch 1, rr 1.5, 12.4, 12.7, 12.10, and 14.28 Cases Cited: Ainslie v Ainslie (1927) 39 CLR 381 Astec Paints Australia Pty Ltd [2008] SASC 64 Aon Risk Services Australia v Australian National University [2009] HCA 27 Australian Securities Commission v Aust-Home Investments Limited 44 FCR 194 Beach Petroleum NL v Abbott Tout Russell Kennedy [1999] NSWCA 408 Blythe v Northwood [2005] NSWCA 221 Bracks v Smyth-Kirk [2009] NSWCA 401 Breen v Williams [1996] HCA 7 Cement Australia Pty Ltd v Australian Competition and Consumer Commission [2010] FCAFC 101 Effem Foods v Trawl Industries of Australia Pty Ltd (1993) 43 FCR 510 Hoser v Hartcher [1999] NSWSC 527 Jennings Construction Ltd v Burgundy Royal Investments Pty Ltd (1986) 161 CLR 681 Lenijamar Pty Ltd v AGC Advances Ltd (1990) 27 FCR 388 Luck v University of Southern Queensland [2009] FCAFC 73 One.Tel Ltd v Deputy Commissioner of Taxation [2000] FCA 270 Pegrum and Pegrum v Fatharly (1996) 14 WAR 92 Port of Melbourne Authority v Anshun Pty Ltd (Anshun case) [1981] HCA 45 Re Minister for Immigration and Ethnic Affairs; ex Parte QIN [1997] HCA 6 Rogers v The Queen [1994] 181 CLR 251 Simundic v University of Newcastle [2007] FCAFC 144 State of Queensland v JL Holdings [1997] HCA 1 Tadros v J&R Investment Services Pty Ltd & Ors [2008] NSWSC 63 Tadros v J and R Investment Services Pty Ltd (No 2) [2008] FCA 832 Texts Cited: Australian Civil Procedure (B Cairns, 7th ed, (2007)) Category: Interlocutory applications Parties: Elias George Wakim v Anthony Tadros Representation: Counsel: Mr J Simpkins SC for plaintiff Mr P Beale for 1st defendant Mr C Robinson for 2nd - 6th defendants Mr JA Rose (Solicitor) for 7th defendant Mr D Lloyd for 8th defendant Solicitors: Mee Ling Solicitors for plaintiff Morgan Ardino & Co. Solicitors for 1st defendant Cambridge Law Group for 2nd to 6th defendants Middletons for 7th defendant Mullane & Lindsay for 8th defendant File Number(s): 2007/00257897