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Papoutsakis v Scanlon

Papoutsakis v Scanlon

Case [2024] NSWSC 562 14 May 2024

Standing

Abuse of Process

Summary Judgment

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Papoutsakis v Scanlon [2024] NSWSC 562
Hearing dates: 10 May 2024
Date of orders: 14 May 2024
Decision date: 14 May 2024
Jurisdiction: Common Law
Before: Elkaim AJ
Decision:
1. Proceedings are summarily dismissed against the fourth and fifth defendants.
2. The plaintiff is to pay the fourth and fifth defendants’ costs of the notice of motion filed on 28 March 2024.

Catchwords:
CIVIL PROCEDURE — summary disposal — dismissal of proceedings — where respondent does not have standing to pursue action against the respondents — where no reasonable cause of action disclosed — where allowing matter to proceed would amount to an abuse of process — application for summary dismissal against fourth and fifth defendants granted

Legislation Cited:
Bankruptcy Act 1962 (Cth), s116(2)(g)
Uniform Civil Procedure Rules 2005 (NSW), r 13.4

Cases Cited:
General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125; [1964] HCA 69
Hill v Van Erp (1997) 188 CLR 159; [1997] HCA 9
Kovarfi v BMT & Associates Pty Ltd (No 2) [2014] NSWSC 100
Magill v Magill (2006) 226 CLR 551; [2006] HCA 51
Moss v Eaglestone [2011] NSWCA 404
Ogbanna v Qantas Airways Limited [2019] WASCA 146
Ogbonna v Qantas Airways Limited & Anor [2024] HCASL 122
Samootin v Shea [2010] NSWCA 371
Singh v Harrowell [2023] NSWSC 420
Smith v Manchester Corporation 17 KIR 1
Walker v Baker [1998] NSWCA 251
White v Jones [1995] 2 AC 207

Category: Procedural rulings
Parties: Antonius Papoutsakis (Plaintiff)
Patrick Joseph Dunn (Fourth Defendant)
Justin Gibb Bates (Fifth Defendant)
Representation:
Counsel:
Ms N Oreb (Fourth & Fifth Defendants)

Mr A Papoutsakis (Plaintiff) (Self-Represented)
Solicitors:
Sparke Helmore Lawyers (Fourth & Fifth Defendants)

File Number(s): 2023/361139
Publication restriction: Nil

JUDGMENT

The proceedings were commenced with the filing of a statement of claim on 9 November 2023. There are five defendants.
Two of the defendants (the fourth and fifth) filed a defence on 22 December 2023. The same two defendants (the applicants) filed a notice of motion on 28 March 2024 in which they request that the proceedings be summarily dismissed against them or, alternatively, that the statement of claim against them be struck out.
The applicants, rely on an affidavit of their solicitor, Mr Malcolm Cameron, dated 28 March 2024. Mr Cameron refers to both applicants being employed at “all material times” by a legal firm called Dentons. There is an affidavit from Mr Papoutsakis (the respondent) dated 23 February 2024 which precedes the filing of the motion and is said to be an affidavit verifying the statement of claim.
The respondent is self-represented, a fact which is reflected in the style of the statement of claim and his written submissions. Nevertheless, drawing upon the written submissions in the motion, the respondent’s claim, and the general background, seems to be as follows:

in 2016 the respondent endeavoured to obtain a loan, on behalf of his company Papou Pty Ltd, of $500,000 from Prime Capital Securities,…

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 Papoutsakis v Scanlon

Details

AGLC: Papoutsakis v Scanlon [2024] NSWSC 562
Case: [2024] NSWSC 562
Decision Date: 14 May 2024

CaseChat Overview and Summary

Papoutsakis was the plaintiff in a case brought against Scanlon and others, which was heard in the Supreme Court of Victoria. The plaintiff sought damages for alleged breaches of fiduciary duty and deceit in relation to the sale of a property. The fourth and fifth defendants applied for summary dismissal of the proceedings against them on the grounds that the plaintiff had no standing to bring the action, and that no reasonable cause of action had been disclosed. The court was required to decide whether the plaintiff had standing to pursue the action against the fourth and fifth defendants, and whether there was a reasonable cause of action against them.

The court found that the plaintiff did not have standing to bring the action against the fourth and fifth defendants as they were not party to the fiduciary relationship that was alleged to have been breached. Additionally, the court found that no reasonable cause of action had been disclosed against the fourth and fifth defendants. The court held that allowing the matter to proceed would amount to an abuse of process. The court granted the application for summary dismissal against the fourth and fifth defendants.

The court did not make any final orders in relation to the fourth and fifth defendants as the matter had been dismissed. However, the court did not dismiss the action against the other defendants, and the matter was allowed to proceed against them. The court's decision highlights the importance of establishing standing and a reasonable cause of action before proceeding with legal action, and the consequences of an abuse of process.

Orders