Zeene v Zeene (No. 2) [2015] NSWSC 1151

Supreme Court New South Wales

Medium Neutral Citation: Zeene v Zeene (No. 2) [2015] NSWSC 1151 Hearing dates: 4 August 2015 Decision date: 04 August 2015 Jurisdiction: Equity Before: White J Decision: 1. Order that the defendant's notice of motion be dismissed. 2. Order that the defendant pay the plaintiff's costs of the defendant's notice of motion, such costs not to include costs that would have been incurred in the proceeding in any event. Catchwords: PRACTICE AND PROCEDURE – application for summary dismissal – res judicata – Anshun estoppel – setting aside consent orders – plaintiff previously sought to have consent orders in an earlier proceeding set aside by way of notice of motion – notice of motion was dismissed – whether dismissal of notice of motion was a dismissal on the merits - plaintiff commenced current proceeding seeking to have those consent orders and the underlying contracts set aside – whether it was unreasonable not to seek to have the underlying contracts set aside in the earlier notice of motion – whether defence of res judicata or Anshun estoppel bound to succeed – application dismissed

PRACTICE AND PROCEDURE – application for a stay pending satisfaction of a costs order in a related proceeding – applicant has not yet sought an assessment of those costs – application refused Legislation Cited: Civil Procedure Act 2005 (NSW) Cases Cited: Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 Ainsworth v Wilding [1896] 1 Ch 673 Australian Securities and Investments Commission v Sigalla (No 4) [2011] NSWSC 62; (2011) 80 NSWLR 113 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 DJL v The Central Authority [2000] HCA 17; (2000) 201 CLR 226 Fancourt v Mercantile Credits Limited (1983) 154 CLR 87 Harvey v Phillips (1956) 95 CLR 235 Macquarie Bank Ltd v National Mutual Life Association of Australia Ltd (1996) 40 NSWLR 543 O'Brien v Tanning Research Laboratories Inc (1988) 14 NSWLR 601 Phillips v Walsh (1990) 20 NSWLR 206 at 209-210; Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691 Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589 RD Werner & Co Inc v Bailey Aluminium Products Pty Ltd (1988) 18 FCR 389 Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 The Sennar (No 2) [1985] 1 WLR 490 Thoday v Thoday [1964] P 181 Zeene v Zeene; unreported, Supreme Court of New South Wales, Young AJ, 22 February 2015 Category: Procedural and other rulings Parties: Cherylyn Tonia Zeene (also known as Cherylyn Tonia Dean) (Plaintiff) Peter Elias Zeene (Defendant) Representation: Counsel: B Adam (Plaintiff) A Vernier (Defendant)