McCarthy v National Australia Bank

Supreme Court

New South Wales

Medium Neutral Citation:

McCarthy v National Australia Bank [2020] NSWSC 1355

Hearing dates:

8 September 2020

Date of orders:

6 October 2020

Decision date:

06 October 2020

Jurisdiction:

Common Law

Before:

Harrison AsJ

Decision:

The Court orders that:

(1) These proceedings are struck out and dismissed.

(2) The plaintiff is to pay the defendant’s costs on an ordinary basis.

Catchwords:

PRACTICE AND PROCEDURE - Application to strike out pleadings - Uniform Civil Procedure Rules 2005 rr 13.4 and 14.28 – Abuse of process – Tendency to cause prejudice, embarrassment or delay

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 56, 57, 58

Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28, 15.3

Cases Cited:

Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279; (1990) 92 ALR 53

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125

Habib v Radio 2UE Sydney Pty Limited [2009] NSWCA 231

Iacullo v Iacullo [2013] NSWSC 1517

McCarthy v National Australia Bank Limited [2015] NSWCA 32

McCarthy v National Australia Bank Limited [2015] NSWCA 370

McCarthy v National Australia Bank Limited (No 2) [2015] NSWCA 230

National Australia Bank Limited v McCarthy [2014] NSWSC 1819

National Australia Bank Limited v McCarthy [2015] NSWSC 1040

National Australia Bank Limited v McCarthy [2015] NSWSC 731

Richard Churchill v The University of Sydney [2020] NSWSC 1343

State Bank of New South Wales Ltd v Alexander Stenhouse Ltd ((1997) Aust Tort Rep 81-423 at 64,809)

Walton v Gardiner (1993) 177 CLR 378; (1993) 112 ALR 289

Category:

Procedural and other rulings

Parties:

Warren Brian McCarthy (Plaintiff)
National Australia Bank (Defendant)

Representation:

Counsel:
Self Represented (Plaintiff)
ZM Hillman (Defendant)

Solicitors:
Self Represented (Plaintiff)
Dentons Australia (Defendant)

File Number(s):

2020/189580

Publication restriction:

Nil

Judgment

1. HER HONOUR: By notice of motion filed 28 July 2020, the defendant seeks:

1. an order pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) that the whole or parts of the plaintiff’s statement of claim filed 26 June 2020 be struck out on the basis that it:

1. discloses no reasonable cause of action;

2. has a tendency to cause prejudice, embarrassment or delay in the proceedings; or

3. is otherwise an abuse of the process of the Court; or in the alternative,

2. an order pursuant to UCPR 13.4 that these proceedings be dismissed as against the defendant on the basis that they are frivolous or vexatious; or in the alternative,

3. an order that the plaintiff be required to file and serve an amended statement of claim which complies with UCPR 15.3.

2. The plaintiff is Warren Brian McCarthy. The defendant is the National Australia Bank (“NAB”). The plaintiff relied upon his affidavit dated 3 August 2020. The defendant relied upon the affidavits of its solicitors, Danielle Catherine Lysenko dated 28 July 2020 and Emma Jane Hodgman dated 31 August 2020. Both parties relied on their written submissions. For convenience, I will refer to the parties by name.

3. At the…