GINGIS & ANOR V GILBERT & ANOR [2000] VSC 62
Supreme Court of Victoria – 8 March 2000
FACTS
Gingis purchased a real estate business from Gilbert and the purchase price was financed by the National Bank. Gingis defaulted on his loan with the Bank and legal proceedings for enforcement of a mortgage and related guarantees were issued by the Bank against Gingis.
During these proceedings, Gingis obtained copies of documents discovered by the Bank that indicated that Gilbert had made misleading statements about the business to Gingis. Gingis attempted to join Gilbert as a third party to the legal proceedings issued by the Bank but was unsuccessful as the joinder would have delayed the trial of that proceeding. Therefore Gingis issued separate proceedings against Gilbert.
Gilbert issued an application seeking to strike out the new proceeding on the basis that it was an abuse of process by Gingis to rely on documents discovered by the Bank for the old proceeding.
ISSUES
Was it an abuse of process for Gingis to use documents discovered for the purpose of the old proceeding to support the new proceeding?
If there had been an abuse of process, should the new proceeding be struck out?
FINDING
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