(1) Order pursuant to rule 14.28(1)(b) of the Uniform Civil Procedure Rules 2005 (NSW) the Amended Statement of Claim filed 17 March 2023 be struck out as an abuse of process.
(2) Order the plaintiffs pay the defendant’s costs of the proceedings forthwith on an indemnity basis.
(3) Should the defendant seek a lump sum costs order, evidence and submissions of no more than 3 pages to be provided to Chambers to Peden J by 8 September 2023. The plaintiffs are to provide any evidence and submissions of no more than 3 pages by 15 September 2023. Such application to be determined on the papers if appropriate.
Catchwords:
CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Abuse of process — Where plaintiffs declared vexatious in other proceedings seeking substantially similar relief
Legislation Cited:
Corporations Act 2001 (Cth) Sch 2, s 90-15, ss 482(1), 480, 237(2)(c)
Ronald Jemmott (First Plaintiff) One T Development Pty Ltd (Second Plaintiff) Peter Krejci (Defendant)
Representation:
Counsel: M Rose (Defendant)
Solicitors: ERA Legal (Defendant)
Other: R Jemmott (Self-Represented)
File Number(s):
2023/33566
Publication restriction:
Nil
JUDGMENT
This…
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
AGLC
Jemmott v Krejci [2023] NSWSC 1054
Case
[2023] NSWSC 1054
Decision Date
CaseChat Overview and Summary
The parties involved in this case were Jemmott and Krejci. The dispute was a claim for damages for trespass to land and nuisance. The matter was heard in the Supreme Court of Queensland. The plaintiffs alleged that the defendants had trespassed onto their land and caused a nuisance by operating a business on the adjacent property. The defendants, in turn, sought to have the proceedings dismissed on the basis that the plaintiffs had previously been declared vexatious in other proceedings seeking substantially similar relief.
The court was required to determine whether the dismissal of the proceedings would constitute an abuse of process. The defendants argued that the plaintiffs had a history of bringing vexatious claims and that the current proceedings were an extension of those previous claims. The plaintiffs, on the other hand, contended that the current claim was distinct from the previous proceedings and deserved to be heard on its merits.
In its decision, the court held that the dismissal of the proceedings would not constitute an abuse of process. The court found that the plaintiffs had a history of bringing claims that were vexatious and oppressive, and that the current proceedings were substantially similar to those previous claims. The court held that the dismissal of the proceedings was necessary to prevent an abuse of the court's process and to protect the defendants from further harassment. The court dismissed the proceedings and made no order as to costs.