Huang v Attapallil (No.3)

[2017] NSWSC 1535

Supreme Court

New South Wales

Medium Neutral Citation:

Huang v Attapallil (No.3) [2017] NSWSC 1535

Hearing dates:

10 November 2017

Date of orders:

10 November 2017

Decision date:

10 November 2017

Jurisdiction:

Common Law

Before:

Garling J

Decision:

On the Notice of Motion filed on 6 November 2017 by the plaintiff:

 (1)   Grant leave to the plaintiff to discontinue the proceedings against the first, second and fourth defendants.
(2)   Order each of the plaintiff, first, second and fourth defendants to pay their own costs of the proceedings, including the Notice of Motion.
(3)   The Motion is otherwise dismissed.
(4)   Order the plaintiff to pay the third defendant's costs of the Motion.

Catchwords:

ADMINISTRATIVE LAW – prerogative writs and orders

 

PROCEDURE – discontinuance of proceedings – whether leave should be granted – no point of principle

  CIVIL PROCEDURE – costs follow the event – parties consent to different order

Legislation Cited:

Uniform Civil Procedure Rules 2005

Cases Cited:

Not Applicable

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)
Mentioned (1D)
J Assi (2D)
F Elliott (3D)
G O’Shea (4D)

  Solicitors:
Lander & Rogers (D3)

File Number(s):

2016/332818

Publication restriction:

Not Applicable

EX TEMPORE Judgment

1. This is an application for leave to discontinue the proceedings brought by Notice of Motion filed on 6 November 2017 by Biru Huang. Miss Huang commenced these proceedings on 8 November 2016 by filing a Summons seeking a variety of relief by way of declarations and orders. The declarations and orders generally concern conduct of the four defendants in proceedings in the District Court and Local Court.

2. On 17 November 2016, the third defendant, Mr Thornley, sought an order pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (“UCPR”) that the proceedings be dismissed as being vexatious, oppressive and an abuse of process. Argument was heard on that day. The Court reserved its decision. The Court listed the judgment for 3 November 2017, but, due to matters beyond its control, judgment was adjourned to be delivered on 10 November 2017.

3. In the meantime, on 6 November 2017, the plaintiff filed a Notice of Motion seeking leave to discontinue the proceedings, pursuant to r 12.1 of the UCPR.

4. The first, second and fourth defendants do not oppose the grant of leave to discontinue the proceedings against them, providing that the Court orders that each party pay their own costs of the proceedings.

5. In the Notice of Motion, Miss Huang sought an order that the defendants pay her costs of the proceedings on an indemnity basis. There is no basis for making such an order. Ordinarily, if a party discontinues proceedings, they would be ordered to pay the other side's costs.

6. In the case of the first, second and fourth defendants, who proffer their consent to the discontinuance on the basis that each party pay their own costs, that is an order which is more favourable to Miss Huang than would ordinarily be the case.

7. Since those parties agree on the discontinuance, and the order for costs is a favourable one to Miss Huang, it is appropriate for the Court to grant the leave sought.

8. Accordingly, I will make the orders which grant leave to the plaintiff to discontinue the proceedings against the first, second and fourth defendants on the basis that each party pay their own costs of the proceedings.

9. With respect to the position of the third defendant, I refuse the plaintiff leave to discontinue against the third defendant. Discontinuance is a mechanism which permits a party to again commence the same proceedings without any bar: that is because a discontinuance involves no determination by the Court of any of the issues sought to be determined in the proceedings.

10. The third defendant in these proceedings made it plain by clear and comprehensive correspondence that the proceedings against him were wrongly brought and in circumstances where their continuation constituted an ongoing prejudice to him.

11. The fact that the plaintiff, if granted leave to discontinue against the third defendant, would be able to recommence the same proceedings, or proceedings in substantively the same form, is an ongoing matter of prejudice. I see no reason why the third defendant should continue to be exposed to such prejudice.

12. In those circumstances, and in light of the opposition of the third defendant, I am not prepared to grant leave to the plaintiff to discontinue its proceedings against him. Judgment will be delivered on the third defendant’s Motion at the conclusion of this judgment.

13. On the Notice of Motion filed on 6 November 2017 by the plaintiff, I make the following orders:

1. Grant leave to the plaintiff to discontinue the proceedings against the first, second and fourth defendants.

2. Order each of the plaintiff, first, second and fourth defendants to pay their own costs of the proceedings, including the Notice of Motion.

3. The Motion is otherwise dismissed.

4. Order the plaintiff to pay the third defendant's costs of the Motion.

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Decision last updated: 13 November 2017