Ghosh v Miller (No 3) - [2016] NSWSC 1568

Supreme Court

New South Wales

Medium Neutral Citation: Ghosh v Miller (No 3) [2016] NSWSC 1568
Hearing dates: 1 November 2016
Date of orders: 07 November 2016
Decision date: 07 November 2016
Jurisdiction: Common Law
Before: Schmidt J
Decision:
Motion dismissed.
Parties to be heard on the foreshadowed gross costs order application.

Catchwords: PROCEDURE – notice of motion – orders seeking to set aside and staying judgments – motion dismissed
Legislation Cited: Bankruptcy Act 1966 (Cth)
Civil Procedure Act 2005 (NSW)
Legal Aid Commission Act 1979 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: D'Orta-Ekenaike v Victorian Legal Aid (2005) 223 CLR 1; [2005] HCA 12
Ghosh v Miller [2016] NSWSC 430
Ghosh v Miller (No 2) [2016] NSWSC 713
Ghosh v Miller [2016] FCA 1293
Ratna Ghosh v John Bee (Supreme Court (NSW), Fagan J, 3 August 2016, unrep)
Category: Procedural and other rulings
Parties: Ratna Ghosh (Plaintiff)
Rodney Miller (Defendant)
Representation:
Counsel:
Mr M Maconachie (Defendant)
Solicitors:
Dr Ghosh, in person (Plaintiff)
Higgins & Dix (Defendant)

File Number(s): 2014/333115
Publication restriction: None

Judgment

Dr Ghosh filed a motion on 24 October 2016 seeking orders setting aside and staying judgments given by Fullerton J on 14 April 2016 (see Ghosh v Miller [2016] NSWSC 430) in these proceedings, after a contested hearing and by Fagan J in matter number 2014/00333115 on 3 August 2016, also after a contested hearing.
Dr Ghosh also sought gross sum costs orders under s 98(4) of the Civil Procedure Act 2005 (NSW) against Mr Miller for non-attendance on specified occasions in 2013 and 2014 in Matter number 2013/235153 and in matter number 2014/00333115, for “failed and hopeless applications” made on identified dates in 2014 and 2015, as well as damages for the delayed settlement of the sale of a unit and for a “failed and hopeless gross sum costs order” made against her on May 2016. Leave to subpoena Mr Miller’s bank records “of what costs were actually paid by Mr Miller and who is funding his defence in all of his cases” was also sought.
An order merging case 2013/235153 and case 2014/00333115 with case number 2013/76771, defamation proceedings brought by Dr Ghosh against Mr Miller, which are still on foot, was also sought.
Mr Miller’s position was that the motion would be dismissed as frivolous and vexatious and an abuse of process, with a gross costs order in his favour, given not only that Dr Ghosh was an undischarged bankrupt with no standing to commence or pursue the application, but because her case was hopeless, given the history of the proceedings.
Dr Ghosh did not appear when her motion first came into the duty judge’s list on 28 October, in circumstances where the parties had mistakenly understood that her motion would be heard that day by Rothman J. When she appeared unrepresented on 1 November at the adjourned hearing, after, she said, having taken legal advice, there was no issue that a sequestration order had been made against Dr…

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 Ghosh v Miller (No 3)

Details

AGLC: Ghosh v Miller (No 3) [2016] NSWSC 1568
Case: [2016] NSWSC 1568
Decision Date: 07 November 2016

CaseChat Overview and Summary

The case of Ghosh v Miller (No 3) involved a dispute between two parties, Ghosh and Miller, in which Ghosh sought to set aside and stay judgments against him. The case was heard in the Supreme Court of Victoria. The central issue before the court was whether the notice of motion filed by Ghosh was sufficient to justify setting aside and staying the judgments.

The court was required to determine if the notice of motion met the criteria for setting aside and staying judgments. This included examining whether the notice of motion provided a prima facie case for relief, whether the applicant had acted promptly, and whether the court had any discretion to grant the relief sought. The court found that Ghosh had not provided a sufficient basis for setting aside and staying the judgments. It was held that the notice of motion did not demonstrate a reasonable prospect of success on the merits, and that Ghosh had not acted with due diligence. As a result, the court dismissed the motion.

In conclusion, the court held that the notice of motion filed by Ghosh did not meet the necessary criteria to justify setting aside and staying the judgments against him. The court dismissed the motion and no orders were made in favour of Ghosh. The judgments against Ghosh remained in place, and the legal dispute between the parties continued.

Orders