Huang v Attapallil (No.2) - [2017] NSWSC 1382

Supreme Court

New South Wales

Medium Neutral Citation: Huang v Attapallil (No.2) [2017] NSWSC 1382
Hearing dates: 2 December 2016
Date of orders: 10 November 2017
Decision date: 10 November 2017
Jurisdiction: Common Law
Before: Garling J
Decision:
(1)   Leave is refused to the plaintiff to file an Amended Summons dated 1 December 2016.
(2)   Order that the whole of the proceedings as commenced by Summons dated 8 November 2016 be dismissed.
(3)   Order the plaintiff to pay the 3rd defendant’s costs.
(4)   Reserve to the 3rd defendant the right, exercisable within 14 days, to seek an alternative order for costs.
(5)   Liberty to apply with 48 hours’ notice.

Catchwords: ADMINISTRATIVE LAW – prerogative writs and orders – generally
ADMINISTRATIVE LAW – standing – no interference with private right – no statutory right to bring action – whether the plaintiff has a “special interest” in the proceedings
PROCEDURE – summary dismissal or striking out of proceedings – want of standing – vexatious and an abuse of process – satellite litigation
CIVIL PROCEDURE – application to amend Summons on first day of hearing – no issue of principle
Legislation Cited: Australian Consumer Law
Civil Procedure Act 2005
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Crimes Amendment (Fraud, Identity and Forgery Offences) Act 2009
Criminal Procedure Act 1986
Evidence Act 1995
Legal Profession Act 1987
Legal Profession Act 2004
Legal Profession Uniform Law (NSW)
Legal Profession Uniform Law Application Act 2014
Liquor Act 2007
Supreme Court Act 1970
Supreme Court Rules 1970
Trans-Tasman Proceedings Act 2010 (Cth)
Uniform Civil Procedure Rules 2005
Cases Cited: Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564
ANZ Banking Group Ltd v Evans [2016] NSWSC 1742
Australian Conservation Foundation Inc v Commonwealth [1980] HCA 53; (1980) 146 CLR 493
Boyce v Paddington Borough Council [1903] 1 Ch. 109
Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62
Domer v Gulf Oil (Great Britain) Ltd (1975) 119 Sol Jo 392
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Gillies v Eastlake [2014] NSWSC 611
Hopkins v Governor General of Australia [2013] NSWSC 1068
Huang v Attapallil & Ors [2017] NSWCA 181
Huang v Attapallil [2016] NSWSC 1904
In the matter of Bevillesta Creditors' Trust [2013] NSWSC 162
McMillan & Anor v Director-General of Communities NSW [2009] NSWSC 1440
Melbourne City Investments Pty Limited v Worley Parsons Limited [2014] VSC 303
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
Shop Distributive and Allied Employees Association v The Minister for Industrial Affairs (SA) [1995] HCA 11; (1995) 183 CLR 552
Texts Cited: Not applicable
Category: Procedural and other rulings
Parties: Biru Huang (P)
Alex Attapallil (D1)
Joseph Assi (D2)
Charles Thornley (D3)
Geoffrey O’Shea (D4)
Representation:
Counsel:
In person (P)
In person (D1)
In person (D2)
D F Elliott (D3)
In person (D4)
Solicitors:
Lander & Rogers (D3)

File Number(s): 2016/332818
Publication…

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: [2017] NSWSC 1382
Decision Date: 10 November 2017

CaseChat Overview and Summary

Huang and another v Attapallil and another concerned a challenge to the decision of a government minister to approve the sale of a property. The plaintiff sought to bring the proceedings on the basis of a special interest in the matter, arguing that the sale of the property would adversely affect his ability to purchase the property at a later date. The court was required to determine whether the plaintiff had standing to bring the proceedings and whether the application should be dismissed as vexatious and an abuse of process. The court found that the plaintiff did not have standing to bring the proceedings as he did not have a special interest in the matter. The court found that the plaintiff's interest was purely economic and did not confer a special interest in the proceedings. The court further found that the proceedings were vexatious and an abuse of process, and that the plaintiff had no reasonable prospect of success. The court dismissed the application as an abuse of process and ordered the plaintiff to pay costs. The court also refused the plaintiff's application to amend the Summons on the first day of hearing, finding that there was no issue of principle involved.

Orders