Power v Nicholson Ryan - [2024] VSC 441

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PROFESSIONAL LIABILITY LIST

S ECI 2023 03544

BETWEEN:

JACQUELINE POWER & ANOR (according to the attached Schedule)	Plaintiffs
v
NICHOLSON RYAN – FORMERLY FOSTER NICHOLSON RYAN (ACN 64 619 343 074) & ANOR (according to the attached Schedule)	Defendants

---

JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	22 February 2024
DATE OF JUDGMENT:	29 July 2024
CASE MAY BE CITED AS:	Power v Nicholson Ryan
MEDIUM NEUTRAL CITATION:	[2024] VSC 441

---

PRACTICE AND PROCEDURE — Application for summary judgment pursuant to s 63 of the Civil Procedure Act 2010 (Vic) and/or striking out of the plaintiffs’ claim pursuant to r 23.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) — Whether plaintiffs have a real prospect of success — Second plaintiff is a company controlled by the first plaintiff — Plaintiffs claim to have incurred ‘wasted costs’ by reason of the defendants’ conduct in an earlier proceeding which sought the winding up of a company in which the second plaintiff was a minority shareholder — First defendant acted for opposing parties in winding up proceeding — Second defendant acted for second plaintiff for a period of time in winding up proceeding — Statement of claim discloses no cause of action — First defendant had no legal or equitable duty to either of the plaintiffs — Allegations against second defendant misconceived —Plaintiffs’ claims have no real prospects of success — No real prospect of the plaintiffs bringing a tenable cause of action against either of the defendants — Plaintiffs’ statement of claim struck out.

PRACTICE AND PROCEDURE — Alleged breach of overarching obligations giving rise to relief under s 29 of the Civil Procedure Act 2010 (Vic) (‘Act’) — Application for grant of extension of time pursuant to s 31(2) of the Act — Whether plaintiffs were aware of any breaches of any overarching obligations prior to the conclusion of the proceeding in which the alleged breaches took place — Plaintiffs failed to establish they were unaware of defendants’ breaches of any overarching obligations prior to the finalisation of the proceeding save in one instance — Jurisdiction to grant extension of time not enlivened — Plaintiffs have no real prospects of establishing the conduct amounted to a breach of any overarching obligations — Plaintiffs are impermissibly seeking to relitigate matters which were, or should have been, heard and determined in prior litigation — Giles v Jeffrey [2016] VSCA 314 referred to — Application dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the First Plaintiff	In person
For the Second Plaintiff	The first plaintiff (by leave granted for hearing on 22 February 2024).
For the First Defendant	Mr C Brown KC	Nicholson Ryan Lawyers
For the Second Defendant	Mr B Petrie of counsel	K & L Gates

HER HONOUR:

Introduction and background

This proceeding concerns, among other things, the conduct of litigation involving the second plaintiff, Freefall Pty Ltd (‘Freefall’), a company controlled by the first…

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 Power v Nicholson Ryan

Details

AGLC: Power v Nicholson Ryan [2024] VSC 441
Case: [2024] VSC 441
Decision Date: 29 July 2024

CaseChat Overview and Summary

Power v Nicholson Ryan involved a dispute between two plaintiffs, the first being an individual and the second a company controlled by the first, against two defendants. The plaintiffs sought to recover costs they claimed to have wasted due to the defendants' conduct in a previous winding-up proceeding. The first defendant acted for opposing parties in that proceeding, and the second defendant briefly represented the second plaintiff. The case was heard in the Supreme Court of Victoria.

The primary legal issue before the court was whether the plaintiffs had a real prospect of success in their claim for wasted costs against the defendants. The court also needed to determine if there was any breach of overarching obligations that could entitle the plaintiffs to relief under the Civil Procedure Act 2010 (Vic) and, if so, whether an extension of time should be granted to the plaintiffs.

The court found that the plaintiffs' statement of claim did not disclose a cause of action. The first defendant had no legal or equitable duty towards the plaintiffs, and the allegations against the second defendant were misconceived. Consequently, the court concluded that the plaintiffs' claims had no real prospect of success. Moreover, the court held that the plaintiffs were not unaware of any alleged breaches of overarching obligations prior to the finalisation of the prior proceeding, except in one instance, which did not justify an extension of time. The court dismissed the plaintiffs' application for relief and struck out their claims, finding that the plaintiffs were attempting to relitigate matters already decided in prior litigation.

The court's final orders were to strike out the plaintiffs' claims and dismiss their application for relief under the Civil Procedure Act 2010 (Vic).

Orders