Islam v Ratul - [2023] NSWSC 1625

Supreme Court

New South Wales

Medium Neutral Citation: Islam v Ratul [2023] NSWSC 1625
Hearing dates: 25 July 2023
Date of orders: 21 December 2023
Decision date: 21 December 2023
Jurisdiction: Common Law
Before: Campbell J
Decision:
(1) Under rule 13.4 Uniform Civil Procedure Rules 2005 (NSW) the proceedings are summarily dismissed;
(2) The plaintiffs are to pay the defendants costs of the proceedings;
(3) Any application for a special order for costs is to be made within 14 days of the date of judgment by written submission not exceeding 3 pages in length supported by any necessary affidavit which may be forwarded to the chambers of Campbell J to be dealt with in chambers on the papers. The responding party is allowed a period of a further 14 days to lodge a written submission not exceeding 3 pages in length if the order is opposed.

Catchwords:
CIVIL PROCEDURE — consideration of whether proceedings are frivolous or vexatious — plaintiff unauthorised to institute proceedings on behalf of company in liquidation — abuse of process in as much as multiple proceedings have been brought to ventilate what is in substance the same asserted cause of action

Legislation Cited:
Corporations Act 2001 (Cth)
Uniform Civil Procedure Rules 2005 (NSW) rr 13.4 and 14.28

Cases Cited:
Ekes v Commonwealth Bank of Australia [2014] NSWCA 336; (2014) 313 ALR 665
GR v Secretary, Department of Communities and Justice; GR v Public Guardian [2023] NSWSC 525
Moore v Inglis (1976) 9 ALR 509
Ratul v Islam; In the matter of Australian Real Estate Relation Pty Ltd [2023] NSWSC 78

Category: Procedural rulings
Parties: MD Rajibul Islam (First Plaintiff)
Mortgage Plus Australia Pty Ltd (Second Plaintiff)
Abu Ratul (First Defendant)
Expert Finance Pty ltd (Second Defendant)
Representation:
Counsel:
MD Rajibul Islam (First Plaintiff) (self-represented)
R Perla (First and Second Defendant)
Solicitors:
Mitry Lawyers

File Number(s): 2023/80544

JUDGMENT

This judgment should be read in conjunction with my first judgment handed down today in companion proceedings, matter number 2023/93964. The proceedings are related and the history of the related proceedings claiming substantially the same relief as set out in that judgment needs to be borne in mind.
These proceedings, the companion proceedings, and the body of other litigation, some of which is referred to in the companion judgment, all arise out of the breakdown of the business relationship between Mr Islam and Mr Ratul conducted through Australian Real Estate Relations Pty Ltd (“ARER”), now in liquidation, up until November 2022. The background to the breakdown of the business relationship commenced with the introduction into the business of Mr Ratul’s wife, Ms Farha Diba and her conduct of her profession as a real estate agent through her corporate vehicle, which is not a party to these proceedings, but which Mr Islam says was to his great financial and personal detriment. The second defendant in these proceedings is Mr Ratul’s company. The essence of Mr Islam’s complaint is the diversion of, on his calculation, as much as of 73.3%…

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 Islam v Ratul

Details

AGLC: Islam v Ratul [2023] NSWSC 1625
Case: [2023] NSWSC 1625
Decision Date: 21 December 2023

CaseChat Overview and Summary

The case of Islam v Ratul involved a dispute between the plaintiff, Islam, and the defendant, Ratul. Islam, acting on behalf of a company in liquidation, sought to enforce a debt against Ratul. The court was required to consider whether the proceedings were frivolous or vexatious, and whether Islam was authorised to institute proceedings on behalf of the company in liquidation. Additionally, the court needed to determine if there was an abuse of process due to the initiation of multiple proceedings to ventilate the same asserted cause of action.

The court examined the plaintiff's authority to bring the proceedings on behalf of the company in liquidation. It found that Islam was not authorised to do so, as the company was in liquidation and the proceedings were not properly instituted. Furthermore, the court identified that the proceedings were an abuse of process, as they were essentially the same cause of action being ventilated in multiple proceedings. The court concluded that the proceedings were frivolous or vexatious due to these factors, and the plaintiff's lack of authorisation to bring the proceedings.

In light of the findings, the court dismissed the proceedings as frivolous and vexatious. The court ordered that the plaintiff pay the defendant's costs of the proceeding. The court's decision emphasised the importance of proper authorisation and the prohibition against abusing the judicial process through the initiation of multiple proceedings to ventilate the same cause of action.

Orders