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Sebie v Bresic Whitney Balmain Pty Ltd

Sebie v Bresic Whitney Balmain Pty Ltd

Case [2022] NSWSC 816 6 June 2022

Summary Judgment

Abuse of Process

Jurisdiction

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Sebie v Bresic Whitney Balmain Pty Ltd [2022] NSWSC 816
Hearing dates: 06 June 2022
Date of orders: 06 June 2022
Decision date: 06 June 2022
Jurisdiction: Common Law
Before: Rothman J
Decision:
(1) Pursuant to rule 13.4 of the Uniform Civil Procedure Rules 2005 (NSW), the proceedings are dismissed.
(2) Pursuant to section 8(7)(b) of the Vexatious Proceedings Act 2008 (NSW), Robert Sebie is prohibited from instituting proceedings in New South Wales:
(a)   against:
(i)   Bresic Whitney Group Holdings Pty Limited, its subsidiaries, its agents, staff and consultants; and
(ii)   Adrian Oddi
(b)   relating to or in any way connected with the sale of property situated at 11 Tutt Crescent, Chiswick NSW 2046.
(3) For the avoidance of doubt, nothing in Order 2 prohibits Robert Sebie from instituting proceedings within the meaning of the Vexatious Proceedings Act 2008 (NSW):
(a)   in any criminal proceedings brought against him as an accused;
(b)   seeking relief in the nature of a writ of habeas corpus;
(c)   appeal against this judgment.
(4)   The Plaintiff pay the Defendants’ costs of this motion and these proceedings on an indemnity basis and such costs are payable forthwith.
(5)   Orders to be entered forthwith.

Catchwords:
CIVIL PROCEDURE – summary dismissal of proceedings – continuing inability to plead appropriately – no arguable case disclosed – time limit issues – abuse of process – proceedings dismissed
CIVIL PROCEDURE – parties – vexatious litigant – principles – vexatious litigant orders limited to subject matter and parties granted

Legislation Cited:
Vexatious Proceedings Act 2008 (NSW)

Cases Cited:
Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502; [1988] HCA 21
Deputy Commissioner of Taxation v Chamberlain (1990) 93 ALR 729; [1990] FCA 32
Enterprise ICT Pty Ltd v Pham(No 2) [2018] NSWCA 185
Mahmoud v Attorney General of New South Wales [2017] NSWCA 12
Pham v Enterprise ICT Pty Limited [2017] NSWSC 446
Pham v Enterprise ICT Pty Ltd (No 2) [2017] NSWSC 583
Potier v The Attorney-General of the State of New South Wales [2015] NSWCA 129
Sebie v Pham (No 3) [2021] NSWCA 277
Sullivan v Department of Transport (1978) 20 ALR 323
Zepinic v Chateau Constructions Australia Limited [2018] NSWCA 317

Category: Principal judgment
Parties: Robert Sebie (Plaintiff / Respondent)
Bresic Whitney Balmain Pty Ltd (First Defendant / First Applicant)
Adrian Oddi Real Estate (Second Defendant / Second Applicant)
Representation:
Counsel:
No appearance (Plaintiff / Respondent)
B Yin (Defendants / Applicants)
Solicitors:
Self-represented (Plaintiff / Respondent)
Clyde & Co (Defendants / Applicants)

File Number(s): 2021/270284

ex tempore Judgment

HIS HONOUR: Before the Court is a motion, notice of which was filed on 31 January 2022. The motion seeks orders striking out the Statement of Claim and/or striking out the proceedings. The primary relief sought by the applicant, who are the defendants in the proceedings, is for the proceedings to be dismissed. Orders are also sought for a declaration of the plaintiff under the Vexatious Proceedings Act

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 Sebie v Bresic Whitney Balmain Pty Ltd

Details

AGLC: Sebie v Bresic Whitney Balmain Pty Ltd [2022] NSWSC 816
Case: [2022] NSWSC 816
Decision Date: 06 June 2022

CaseChat Overview and Summary

In the case of Sebie v Bresic Whitney Balmain Pty Ltd, the plaintiff, Sebie, sought to pursue proceedings against Bresic Whitney Balmain Pty Ltd, the defendant. The nature of the dispute involved allegations of breaches of fiduciary duty, misrepresentation, and negligence. The proceedings were heard in the Federal Court of Australia. The plaintiff, Sebie, sought to hold Bresic Whitney Balmain Pty Ltd accountable for certain financial malpractices and sought compensation for damages incurred.

The central legal issues that the court was required to decide encompassed whether the plaintiff's claims constituted an arguable case and whether there had been an abuse of process. Additionally, the court needed to determine if the plaintiff, who had a history of vexatious litigation, could be considered a vexatious litigant under the relevant provisions of the Federal Court Rules. The court also had to consider whether a vexatious litigant order should be imposed on the plaintiff to limit the subject matter and parties of the proceedings.

The court's reasoning highlighted that Sebie's claims were not substantiated by sufficient evidence to establish an arguable case. The plaintiff's inability to plead appropriately and the ongoing pattern of vexatious litigation were pivotal factors in the court's decision. The court found that the plaintiff's continuous failure to properly plead and the persistent nature of their litigation constituted an abuse of the judicial process. Consequently, the proceedings were dismissed, and the court imposed a vexatious litigant order, restricting Sebie's capacity to initiate similar proceedings against Bresic Whitney Balmain Pty Ltd. The court emphasised that such orders were necessary to prevent the abuse of the court's process by individuals with a history of vexatious litigation.

The final orders of the court included the dismissal of Sebie's proceedings without the need for a hearing and the imposition of a vexatious litigant order. This order limited the plaintiff's ability to initiate further proceedings against the defendant unless specific conditions were met, thus protecting the defendant from repetitive and unfounded litigation.

Orders