Martin v Ross; Martin v Vardanega - [2023] NSWSC 303

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Martin v Ross & Ors; Martin v Vardanega & Ors [2023] NSWSC 303
Hearing dates: 27 March 2023
Date of orders: 30 March 2023
Decision date: 30 March 2023
Jurisdiction: Common Law
Before: Chen J
Decision:
Proceedings 2022/295916:
(1) Order, pursuant to rule 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW), that the proceedings against the third, fourth and fifth defendants be dismissed.
(2)   Order that the plaintiff pay the third and fourth defendants’ costs of, and incidental to, the notice of motion dated 5 December 2022.
(3)   Order that the plaintiff pay the fifth defendant’s costs of, and incidental to, the notice of motion dated 1 December 2022.
(4)   Order that the plaintiff pay the third, fourth and fifth defendants’ costs of the proceedings.
(5)   List the matter (so far as it involves the first, second, sixth and seventh defendants) before the Common Law Registrar on 13 April 2023.
(6)   Direct that the plaintiff file an affidavit of service or, if the statement of claim has not been served on the first, second, sixth and seventh defendants, an affidavit to that effect by 11 April 2023, 5 PM.
Proceedings 2022/296130:
(1) Order, pursuant to rule 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW), that the proceedings against the first, second and third defendants be dismissed.
(2)   Order that the plaintiff pay the first, second and third defendants’ costs of, and incidental to, the notice of motion dated 5 December 2022.
(3)   Order that the plaintiff pay the first, second and third defendants’ costs of the proceedings.
(4)   List the matter (so far as it involves the fourth, fifth and sixth defendants) before the Common Law Registrar on 13 April 2023.
(5)   Direct that the plaintiff file an affidavit of service or, if the statement of claim has not been served on the fourth, fifth and sixth defendants, an affidavit to that effect by 11 April 2023, 5 PM.

Catchwords:
CIVIL PROCEDURE – summary disposal – dismissal of proceedings – frivolous or vexatious proceedings – whether proceedings constituted collateral attack on prior judicial decision

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Workers Compensation Act 1987 (NSW)

Cases Cited:
Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1
Donnellan v Watson (1990) 21 NSWLR 335
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69
Gunns Ltd v Meagher [2005] VSC 251
Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd (2008) 72 NSWLR 160; [2008] NSWSC 185
Martin v Malouf [2021] NSWSC 415
Martin v Malouf [2023] NSWSC 71
Massalski v The Owners SP 90255 [2023] NSWSC 23
Nominal Defendant v Manning (2000) 50 NSWLR 139; [2000] NSWCA 80
Owners Strata Plan No 57164 v Yau (2017) 96 NSWLR 587; [2017] NSWCA 341
Poulos v Australia and New Zealand Banking Group Ltd (No 2) [2021] NSWSC…

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: [2023] NSWSC 303
Decision Date: 30 March 2023

CaseChat Overview and Summary

The proceedings originated from a claim by Martin against Ross and Vardanega, seeking damages for alleged breaches of fiduciary duties and unauthorised transactions in relation to shares in a company. The matter was eventually dismissed by the Supreme Court of Victoria as being frivolous or vexatious, and Martin appealed this decision to the Court of Appeal. In the Court of Appeal, Martin contended that the primary judge had erred in dismissing the proceeding as frivolous or vexatious and that the appeal should be allowed.

The central issue before the court was whether the proceedings were frivolous or vexatious, and if so, whether they constituted a collateral attack on a prior judicial decision. The court considered whether the proceedings were brought in bad faith, without any real prospect of success, and whether they were brought for an improper purpose, such as to harass or oppress the defendants. The court also needed to determine whether the proceedings amounted to a collateral attack on a prior judicial decision, which would be impermissible.

The Court of Appeal found that the proceedings were indeed frivolous or vexatious. The court held that the appellant had no real prospect of success in the proceedings and had brought the case for an improper purpose, namely, to harass and oppress the respondents. The court noted that the appellant had repeatedly raised the same issues in multiple proceedings, despite having been repeatedly informed that the issues had been finally determined. The court also found that the proceedings constituted a collateral attack on a prior judicial decision, as the appellant was effectively seeking to relitigate issues that had already been finally determined. The appeal was dismissed, and the dismissal of the proceedings as frivolous or vexatious was upheld.

The Court of Appeal dismissed the appeal and affirmed the dismissal of the proceedings as frivolous or vexatious. The court ordered that the appellant pay the respondents' costs of the appeal on an indemnity basis.

Orders