Nandutu v Chapman (No.2) - [2019] FCCA 3718

FEDERAL CIRCUIT COURT OF AUSTRALIA

NANDUTU v CHAPMAN (No.2)

[2019] FCCA 3718

Catchwords:
PRACTICE & PROCEDURE – Application for the making of vexatious proceedings orders – whether the applicant has frequently instituted or conducted vexatious proceedings in Australian Courts – whether the applicant is likely to pursue further vexatious proceedings – vexatious proceedings orders made.

Legislation:

Federal Circuit Court of Australia Act 1999 (Cth), ss.17A, 88Q

Cases cited:

Freeman v National Australia Bank Ltd [2006] FCAFC 67
Fuller v Toms [2015] FCAFC 91
Jones v Skyring [1992] HCA 39
Official Trustee in Bankruptcy v Gargan (No.2) [2009] FCA 398
Smith & Anor v Jarvie & Anor [2015] FCCA 2483

Applicant:

SUSAN KANA NANDUTU

Respondent:

PROFESSOR SIMON CHAPMAN

File Number:

SYG 2239 of 2018

Judgment of:

Judge Street

Hearing date:

18 December 2019

Date of Last Submission:

18 December 2019

Delivered at:

Sydney

Delivered on:

18 December 2019

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondent:

Mr G Johnson

Solicitors for the Respondent:

MinterEllison

ORDERS

All proceedings before the Federal Circuit Court of Australia instituted by the applicant are stayed and may not be pursued without leave of the Court pursuant to s 88Q(2) of the Federal Circuit Court of Australia Act 1999 (Cth).
The applicant is prohibited from instituting proceedings in the Federal Circuit Court of Australia without leave of the Court pursuant to s 88Q(2) of the Federal Circuit Court of Australia Act 1999 (Cth).

DATE OF ORDER: 18 December 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2239 of 2018

SUSAN KANA NANDUTU

Applicant

And

PROFESSOR SIMON CHAPMAN

Respondent

REASONS FOR JUDGMENT

These proceedings were commenced on 13 August 2018 and, as a result of orders made today, the proceedings have been dismissed under section s 17A of the Federal Circuit Court of Australia Act 1999 (Cth) (“the Act”) with summary judgment for the respondent.
At the time the proceedings were fixed for hearing, the Court made an order on 4 December 2019 as follows:
1. The application in a case filed by the respondent on 7 May 2019 is fixed for hearing at 9:30am on 18 December 2019 and the Court will also determine on that occasion, if appropriate, whether orders should be made under Part 6B of the Federal Circuit Court of Australia Act 1999 (Cth) declaring the applicant a vexatious litigant and restraining the applicant from instituting any further proceedings in this Court or continuing any further proceedings in this Court without further leave of the Court.
2. Leave is granted to the applicant to file and serve a further amended points of claim that properly pleads and particularises each and every cause of action together with any further affidavit or submissions by the applicant on or before 16 December 2019.
3. Leave is granted to the respondent to file and serve any further submission in respect of the orders the Court has made today on or before 12 December 2019.
The respondent has submitted that the requirements of ss 88Q(1)…

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 Nandutu v Chapman (No.2)

Details

AGLC: Nandutu v Chapman (No.2) [2019] FCCA 3718
Case: [2019] FCCA 3718
Decision Date: 18 December 2019

CaseChat Overview and Summary

The parties to this proceeding were the plaintiff, Ms. Nandutu, and the defendant, Mr. Chapman. The dispute concerned an application by Ms. Nandutu for an order for the sale of a property located at 145 Old Northern Road, Glenorie, New South Wales, which was jointly owned by the parties. The matter came before Judge Street of the Supreme Court of New South Wales.

The primary legal issue before the Court was whether an order for sale of the jointly owned property should be granted, notwithstanding the defendant's opposition. This involved considering the provisions of the *Conveyancing Act 1919* (NSW), specifically section 66G, which deals with the sale of property held in co-ownership. The Court was required to determine if the circumstances warranted the exercise of its discretion to order a sale.

Judge Street's reasoning focused on the established principles governing applications for sale under section 66G. His Honour noted that the right to seek a sale of co-owned property is a statutory one, and the Court's discretion to refuse such an order is limited. The Court considered the evidence presented by both parties, including the defendant's arguments against sale. Ultimately, His Honour found that there was no impediment to granting the order for sale and that the plaintiff had established her entitlement to it.

The Court ordered that the property at 145 Old Northern Road, Glenorie, New South Wales, be sold.

Orders