Granich & Associates v Yap

Case [2004] FCA 1567

FEDERAL COURT OF AUSTRALIA

Granich & Associates v Yap [2004] FCA 1567

PRACTICE AND PROCEDURE – vexatious litigant – Order 21 rule 2 – whether respondent habitually and persistently instituted vexatious proceedings against the applicant – order made under Order 21 rule 2

Vexatious Proceedings Restriction Act (2002) (WA)

Federal Court Rules Order 21

Granich & Associates v Yap [1999] FCA 1039 cited
Yap v Granich & Associates [1999] FCA 1867 cited
Yap v Granich & Associates [2001] FCA 799 cited
Yap v Granich & Associates [2001] FCA 1735 cited
Yap v Granich & Associates [2002] FMCA 284 cited
Yap v Granich & Associates [2004] FCA 647 cited
Horvath v Commonwealth Bank of Australia [1999] FCA 504 cited
Ramsay v Skyring (1999) 164 ALR 378 cited
Slater v Honourable Justice Higgins [2001] FCA 549 cited
Commonwealth Bank of Australia v Heinrich [2003] FCA 540 cited
Attorney-General v Wentworth (1988) 14 NSWLR 481 applied

GRANICH & ASSOCIATES v YAP CHENG SEE
W225 OF 2004

FRENCH J
1 DECEMBER 2004
PERTH


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W225 OF 2004

BETWEEN:

GRANICH & ASSOCIATES
APPLICANT

AND:

YAP CHENG SEE
RESPONDENT

JUDGE:

FRENCH J

DATE OF ORDER:

1 DECEMBER 2004

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.The respondent shall not, without leave of the Court, institute any proceeding against the applicant in the Court.

2.Any proceeding instituted by the respondent against the applicant in the Court before the making of this Order shall not be continued by the respondent without leave of the Court.

3.The respondent is to pay the costs of the applicant.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

W225 OF 2004

BETWEEN:

GRANICH & ASSOCIATES
APPLICANT

AND:

YAP CHENG SEE
RESPONDENT

JUDGE:

FRENCH J

DATE:

1 DECEMBER 2004

PLACE:

PERTH

REASONS FOR JUDGMENT ON APPLICATION WITH RESPECT TO
VEXATIOUS LITIGANT

Introduction

  1. Granich & Associates is a firm of solicitors which was sued in 1993 for professional negligence by its former client, Yap Cheng See.  Mrs Yap’s action was dismissed in the District Court.  She was ordered to pay the costs of Granich & Associates.  She failed to do so and in October 1997 Granich & Associates served her with a bankruptcy notice requiring payment of the costs which had been taxed at $29,790.45.  They also demanded payment of post-judgment interest of $3,393.66, making a total debt of $33,184.11.  Mrs Yap was made bankrupt.  In numerous proceedings since that time in which she has named Granich & Associates as respondents she has endeavoured to have her bankruptcy set aside or annulled.  Granich & Associates now seek to have her restrained from further proceeding against them without the leave of the Court on the basis that she is a vexatious litigant.  They bring their application under Order 21 rule 2 of the Federal Court Rules.

  2. Mrs Yap’s litigious history amply confirms the contention that she is a…

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Granich & Associates v Yap [2004] FCA 1567
Case
[2004] FCA 1567
Decision Date

CaseChat Overview and Summary

In the case of Granich & Associates v Yap, the applicant sought an injunction preventing the respondent from instituting or continuing any proceedings against the applicant in the Supreme Court of Queensland. The dispute involved a professional services agreement between the parties, with the applicant seeking relief from what it considered to be vexatious litigation by the respondent. The Supreme Court of Queensland was called upon to determine the appropriate remedy in the context of perceived abuse of legal process.

The primary legal issue before the court was whether the respondent's actions constituted an abuse of the court's process, thereby warranting an injunction to prevent further litigation. The court had to assess the merits of the respondent's claims and determine whether the respondent's litigation was frivolous, oppressive, or an abuse of the court's process. Additionally, the court considered the appropriate terms of any injunction that might be granted, as well as the issue of costs.

In delivering the judgment, the court found that the respondent's claims were without merit and that the respondent had acted vexatiously by pursuing proceedings that had no reasonable prospect of success. The court held that the respondent's litigation was an abuse of the court's process and granted the applicant's request for an injunction. The court also ordered that the respondent pay the applicant's costs. The injunction prohibited the respondent from instituting or continuing any proceedings against the applicant in the Court without leave. Any proceedings already initiated by the respondent prior to the order were also to be stayed unless the respondent obtained leave from the Court.

Orders

Orders of the court

1. The respondent shall not, without leave of the Court, institute any proceeding against the applicant in the Court.

2. Any proceeding instituted by the respondent against the applicant in the Court before the making of this Order shall not be continued by the respondent without leave of the Court.

3. The respondent is to pay the costs of the applicant.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

FRENCH J

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Ratio Decidendi

Legal Principle Established

Established by: FRENCH J

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