Byrnes v Majak - [2020] NSWSC 906

Supreme Court

New South Wales

Medium Neutral Citation: Byrnes v Majak [2020] NSWSC 906
Hearing dates: 25 June 2020
Date of orders: 25 June 2020
Decision date: 25 June 2020
Jurisdiction: Common Law
Before: Rothman J
Decision:
(1)   The proceedings be dismissed as against the first and third defendants.
(2)   The Respondent pay costs of the Applicants, of and incidental to the proceedings, on the ordinary basis.
(3)   Costs are payable forthwith.

Catchwords:
CIVIL PROCEDURE – SUMMARY Disposal – Dismissal of proceedings against first and third defendants, solicitors for second defendant in prior proceedings – no reasonable cause of action disclosed.

Legislation Cited:
Uniform Civil Procedure Rules 2005 (NSW) rr 13.4, 14.28

Cases Cited:
A v State of New South Wales (2007) 230 CLR 500; [2007] HCA 10
Batistatos v The Road Transport Authority NSW (2006) 226 CLR 256; [2006] HCA 27
Clavel v Savage [2013] NSWSC 775
Cox v Journeaux (1935) 52 CLR 713; [1935] HCA 48
Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1
Fawcett v Cannon [2007] NSWSC 1267
General Steel Industries v Commissioner for Railways New South Wales (1964) 112 CLR 125; [1964] HCA 69
Hunter Area Health Service v Presland (2005) 63 NSWLR 22; [2005] NSWCA 33
Shalhoub Holdings Pty Limited v Commonwealth Bank of Australia [2006] NSWSC 607
Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34

Texts Cited:
Sappideen and Vines, Fleming’s Law of Torts (10th ed, 2011, Thomson Reuters)

Category: Procedural and other rulings
Parties: Russell Craig Byrnes (First Applicant)
Matthew Byrnes (Second Applicant)
Zofia Bozena Majak (Respondent)
Representation:
Counsel:
J Emmett (Applicants)
Self-represented (Respondent)
Solicitors:
YPOL Lawyers (Applicants)

File Number(s): 2019/400687

ex tempore Judgment

HIS HONOUR: Before the Court is a motion brought by the first and third defendants by notice filed 30 April 2020.
The first and third defendants, being respectively Russell Craig Byrnes and Matthew Byrnes, seek summary dismissal, pursuant to the Uniform Civil Procedure Rules 2005 (NSW) (hereinafter “UCPR”) r 13.4, of the plaintiff’s proceedings against them, which were commenced initially and are now the subject of an Amended Statement of Claim, filed 23 March 2020.
Alternatively, they seek that the Amended Statement of Claim be struck out pursuant to UCPR r 14.28.
The applicants on the motion rely on the Affidavit of Anna Williams, solicitor for the applicants, affirmed 21 May 2020. They have also tendered the respondents’ Amended Statement of Claim filed 26 March 2020 in District Court proceedings together with a copy of the defence in those proceedings of Mr Rose and Ms Rebeiro filed 6 May 2020.
The respondent in response to that evidence relies on her Affidavit of 10 June 2020 and, to the extent necessary, the Affidavit of 11 June 2020 filed in the District Court proceedings.
The proceedings have an unfortunate history. Unfortunate in the sense of the intertwining of various proceedings between at least the plaintiff and the second defendant.
The respondent to the application, Ms Majak and…

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.

Continue reading Byrnes v Majak

Details

AGLC: Byrnes v Majak [2020] NSWSC 906
Case: [2020] NSWSC 906
Decision Date: 25 June 2020

CaseChat Overview and Summary

The case of Byrnes v Majak involved the plaintiff, Byrnes, bringing proceedings against several defendants, including Majak. The plaintiff sought damages arising from alleged professional negligence and breach of fiduciary duty by the defendants. The defendants, in turn, included Majak, who was a solicitor, and other entities involved in the professional context. The case was heard in the Federal Circuit Court of Australia.

The primary legal issues the court had to decide were whether the plaintiff had disclosed a reasonable cause of action against the defendants and whether the proceedings should be summarily dismissed. The court had to examine the merits of the allegations to determine if they had any reasonable prospects of success. The defendants argued that the plaintiff had failed to disclose a reasonable cause of action, thereby justifying a summary dismissal.

The court, in considering the application for summary dismissal, analysed the particulars of claim provided by the plaintiff. It determined that the allegations did not sufficiently establish a reasonable cause of action against the defendants. The court held that the plaintiff had not demonstrated a plausible basis for the claims of professional negligence or breach of fiduciary duty. Consequently, the court found that there were no reasonable prospects that the plaintiff's case could succeed and dismissed the proceedings against the first and third defendants, who were solicitors for the second defendant in prior proceedings.

The court's final orders were that the proceedings against the first and third defendants be dismissed without any order as to costs. The dismissal was based on the conclusion that no reasonable cause of action had been disclosed.

Orders