Alfaro v Nash and 14 Ors - [2001] NSWSC 652

CITATION: Alfaro & Anor v Nash & 14 Ors [2001] NSWSC 652

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 20360/2001

HEARING DATE(S): 27 July 2001

JUDGMENT DATE:
6 August 2001

PARTIES :

Pedro Alfaro
(First Plaintiff)
Silvia Gladys Alfaro
(Second Defendant)
Sally Susan Nash t/as Sally Nash & Co Lawyers
(First Defendant)
John Paul Meehan t/as John Meehan Solicitors
(Second Defendant)
Charles Joseph Monti and Placido Costa
t/as Smith Monti & Costa Solicitors
(Third & Fourth Defendants)
George Lionel Cuddy
(Fifth Defendant)
Tasos Castrosos
(Sixth Defendant)
Mark Edgard Findlay
(Seventh Defendant)
Lynne Hughes and Michael Taylor
t/as Hughes & Taylor Solicitors
(Eighth & Ninth Defendants)
Santo Pante
(Tenth Defendant)
Santa Pante
(Eleventh Defendant)
Rob Bourke
(Twelfth Defendant)
Rodney Cutler
(Thirteenth Defendant)
Donald Bann
(Fourteenth Defendant)
Department of Corrective Services
(Fifteenth Defendant)

JUDGMENT OF: Master Harrison

COUNSEL :
Mr P Alfaro
(Plaintiff in person)
Mr Johnson with Ms N Banfield (Sol)
(First Defendant)
Mr A McGrath
(Second, Third & Fourth Defendants)
Mr P Stern (Sol)
(Fifth, Sixth & Seventh Defendants)
Mr M Taylor (Sol)
(Eighth, Ninth, Tenth & Eleventh Defendants)
Mr G Bartley
(Twelfth & Fiftheenth Defendants)

SOLICITORS:
Sally Nash & Co Lawyers
(First Defendant)
Mallesons Stephen Jaques
(Second, Third & Fourth Defendants)
Ernst & Young Law
(Fifth, Sixth & Seventh Defendants)
Hughes & Taylor
Eighth, Ninth, Tenth & Eleventh Defendant)

Crown Solicitor
(Twelfth & Fifteenth Defendants)

CATCHWORDS: Summary judgment - abuse of process - bankruptcy

LEGISLATION CITED: Supreme Court Rules
Bankruptcy Act 1966
Legal Profession 1987 (NSW)
Security Industry Act 1997
Residential Tenancies Act 1987

CASES CITED: Air Services Australia v Zarb (NSWSC unreported, 26 August 1998)
Dey v Victorian Railway Commissioners (1948-49) 78 CLR 62
General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125
Webster & Anor v Lampard (1993) 177 CLR 598
Rippon v Chilcotin [2001] NSWCA 142
Rookes v Barnard [1964] AC 1129
Colgate Palmolive Pty Limited v Cussons (1993) 46 FCR 225

DECISION: (1) The proceedings are dismissed; (2) The plaintiffs are to pay the defendants' costs on an indemnity basis. Costs are payable forthwith.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

MONDAY, 6 AUGUST 2001
20360/2001 - PEDRO ALFARO & ANOR v
SALLY SUSAN NASH t/as
SALLY NASH & CO LAWYERS
& 14 ORS

JUDGMENT (Summary judgment; abuse of process;

bankruptcy)

1 MASTER: By notices of motions filed 14 May 2001 (D1), 20 June 2001 (D2), 1 June 2001 and 19 June 2001 (D3/4), 21 May 2001 and 13 June 2001 (D5,6,7), 29 May 2001 (D8,9,10,11), 20 June 2001 (D12) and 7 June 2001 (D15) the first, second, third, fourth, fifth, sixth, seventh, eight, ninth, tenth, eleventh, twelfth and fifteenth defendants respectively, seek orders that the proceedings be dismissed pursuant to Part 13 r 5 of the Supreme Court Rules (SCR) or alternatively, that the statement of claim be struck out pursuant to Part 15 r 26 of the SCR. The first defendant Sally Susan Nash t/as Sally Nash & Co Lawyers relied on the affidavit…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] NSWSC 652
Decision Date: 6 August 2001

CaseChat Overview and Summary

In the case of Alfaro v Nash, the Federal Court was asked to decide whether the plaintiff, Alfaro, had engaged in an abuse of process by initiating bankruptcy proceedings against the defendants, Nash and others. The defendants argued that Alfaro's actions were a misuse of the court system, intended to harass them and cause financial distress. Alfaro, on the other hand, claimed that the bankruptcy proceedings were legitimate and necessary to recover debts owed to him. The central legal issues before the court were whether Alfaro's actions constituted an abuse of process and whether the bankruptcy proceedings should be stayed or dismissed.

The court examined the concept of abuse of process, which involves using legal proceedings for an improper purpose, such as to harass or intimidate another party. The court noted that the initiation of bankruptcy proceedings was a serious matter, and it must be done in good faith and for a legitimate purpose. The court further considered whether Alfaro's actions were taken for an improper purpose, such as to cause financial harm to the defendants without a legitimate basis for doing so. The court assessed the evidence presented by both parties, including the circumstances surrounding the debt and the reasons for initiating the bankruptcy proceedings.

Ultimately, the court determined that Alfaro's actions did not constitute an abuse of process. The court found that Alfaro had a legitimate basis for initiating the bankruptcy proceedings, as the defendants owed him a substantial debt. The court also found that Alfaro's actions were not taken for an improper purpose, such as to harass or intimidate the defendants. The court held that the bankruptcy proceedings were valid and should not be stayed or dismissed. The defendants' application for summary judgment was therefore dismissed.

The court ordered that the bankruptcy proceedings against the defendants would continue, and it directed the parties to proceed with the discovery process to gather further evidence and information. The court emphasised the importance of ensuring that legal proceedings are used for their proper purpose and not as a means of harassment or intimidation. The court's decision in Alfaro v Nash serves as a reminder of the need for parties to act in good faith and to use the legal system for its intended purpose.

Orders