(1) The application for leave to appeal in the House Proceedings (CA 41018/04) is dismissed with costs (2) The application for leave to appeal in the Lease Proceedings (CA 41019/04) is granted (3) The appeal in regard to the Lease Proceedings is upheld and the orders made by Palmer J in regard thereto are set aside (4) The Lease Proceedings are stayed until Austcorp provides TBPL and Mr Barr with an indemnity against any costs that they might be ordered to pay Narui (5) TBPL and Mr Barr to pay the costs of the application for leave to appeal and the appeal in the Lease Proceedings as well as the costs of the application for a stay of the Lease Proceedings before Palmer J.
CATCHWORDS:
Maintenance and champerty - Dismiss or stay proceedings - Focus should be on the tendency of the funding arrangements to produce an abuse of process rather than whether champerty and maintenance exist - Whether it is reasonably arguable that the funder of the proceedings has a genuine commercial interest in their subject matter - The interest must be rights-based and not a mere hope. - Abuse of process - Dismiss or stay of proceedings - Focus should be on the tendency of the funding arrangements to produce an abuse of process rather than whether champerty and maintenance exist - Relevant factors include the existence of a reasonably arguable genuine commercial interest and the control of proceedings by a person not formally a party to them - Lack of proportionality between the value of the rights, the subject of the proceedings, and any subsisting right independent of the proceedings does not necessarily lead to a tendency to amount to an abuse of process - Person controlling the proceedings in the name of the nominal plaintiff has no potential liability for the successful defendant's costs leading to a tendency to amount to an abuse of process. D
LEGISLATION CITED:
Corporations Act 2001 (Cth), s 1335(1) Supreme Court Act 1970 (NSW), s 76(1) Supreme Court Rules, 1970 (NSW), Pt 4 r 4A, Pt 11 r 1A, Pt 52 r 4(5)(d), Pt 53 r 2
CASES CITED:
Andrews v Caltex Oil (Australia) Pty Ltd (1982) 40 ALR 305 Annesley v Simeon 4 Mad. 390 Attorney General v Newspaper Publishing Plc [1987] 3 All ER 276 Attorney General v Punch Ltd [2001] 2 All ER 655 Attorney General (UK) v Newspaper Publishing Plc [1988] Ch 333 Brown v Guardian Royal Exchange Assurance Plc [1994] 2 Lloyd's Rep 325 Clairs Keeley (a firm) v Treacy (2005) 29 WAR 479 Cowell v Taylor (1886) 31 Ch D 34 Crittenden v Bayliss [2002] EWCA Civ 50
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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AGLC
Project 28 Pty Ltd v Barr [2005] NSWCA 240
Case
[2005] NSWCA 240
Decision Date
CaseChat Overview and Summary
Project 28 Pty Ltd (the applicant) sought to appeal decisions of Palmer J in relation to proceedings concerning a house and a lease. The respondent, Mr Barr, sought to stay the lease proceedings on the grounds of champerty and maintenance, arguing that the funding arrangements for the proceedings constituted an abuse of process.
The central legal issues before the Court of Appeal were whether the funding arrangements for the lease proceedings were champertous or otherwise amounted to an abuse of process, and if so, what orders should be made. The court was required to consider whether the funder, Austcorp, had a genuine commercial interest in the subject matter of the proceedings that was rights-based, and whether the control of the proceedings by Austcorp, a non-party, tended to produce an abuse of process.
The Court of Appeal, comprising Hodgson and Ipp JJA and Campbell AJA, reasoned that the focus should be on whether the funding arrangements tended to produce an abuse of process, rather than strictly on the existence of champerty and maintenance. The court considered that a lack of proportionality between the value of the rights and any independent subsisting right did not necessarily lead to an abuse of process. However, the court found that the control of the proceedings by a person not formally a party, who had no potential liability for the successful defendant's costs, did lead to a tendency to amount to an abuse of process.
Consequently, the application for leave to appeal in the House Proceedings was dismissed with costs. In the Lease Proceedings, leave to appeal was granted, and the appeal was upheld. The orders made by Palmer J were set aside, and the Lease Proceedings were stayed until Austcorp provided an indemnity against costs to the respondents. The respondents were ordered to pay the costs of the applications and the appeal in the Lease Proceedings.
Orders
Orders of the court
(1) The application for leave to appeal in the House Proceedings (CA 41018/04) is dismissed with costs (2) The application for leave to appeal in the Lease Proceedings (CA 41019/04) is granted (3) The appeal in regard to the Lease Proceedings is upheld and the orders made by Palmer J in regard thereto are set aside (4) The Lease Proceedings are stayed until Austcorp provides TBPL and Mr Barr with an indemnity against any costs that they might be ordered to pay Narui (5) TBPL and Mr Barr to pay the costs of the application for leave to appeal and the appeal in the Lease Proceedings as well as the costs of the application for a stay of the Lease Proceedings before Palmer J.