Sethi v Cho (No 5) - [2023] NSWSC 1335

Supreme Court

New South Wales

Medium Neutral Citation: Sethi v Cho (No 5) [2023] NSWSC 1335
Hearing dates: 3 November 2023
Date of orders: 3 November 2023
Decision date: 03 November 2023
Jurisdiction: Equity
Before: Henry J
Decision:
(1)   Dismiss the plaintiff’s Notice of Motion filed on 20 September 2023.
(2)   The plaintiff to pay the defendant’s costs in relation to plaintiff’s Notice of Motion filed on 20 September 2023.
(3)   Order that the plaintiff is not to file any further notice of motion, other Court document or take any other steps in these proceedings, such as seeking leave to issue a subpoena, without the leave of the Court.
(4)   These orders be entered forthwith.

Catchwords:
CIVIL PROCEDURE — Appearance — Non-appearance of plaintiff — Where orders sought lack legal foundation, seek the same or similar relief to previous motion dismissed by Court for abuse of process, seek leave to issue a subpoena which is a fishing expedition or lack a basis for costs or damages — Whether plaintiff should be prevented from taking any further steps in these proceedings without the leave of Court

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
National Australia Bank Limited v Mellander [2023] NSWSC 1242
Sebie v Pham [2018] NSWCA 332

Texts Cited:
Ritchie’s Uniform Civil Procedure NSW

Category: Principal judgment
Parties: Akhil Sethi (Plaintiff; Self-Represented)
Joe Cho (Defendant)
Representation: Solicitors:
Hicksons Lawyers (Defendant)

File Number(s): 2023/00252488
Publication restriction: Nil

JUDGMENT – EX TEMPORE (REVISED)

Listed before me today for hearing is a notice of motion filed by the plaintiff, Akhil Sethi, on 20 September 2023 (20 September Motion) and two other applications: one made by Mr Sethi objecting to Hicksons Lawyers representing the defendant, Joe Cho; and another made by Mr Cho to set aside a notice to produce for inspection dated 17 October 2023 issued by Mr Sethi.
When the hearing commenced just after 10.00am, Mr Sethi made an application for an adjournment of these proceedings. After hearing from the parties, I refused to grant an adjournment for ex tempore reasons given this morning. I then dealt with Mr Sethi’s application objecting to Hicksons Lawyers representing Mr Cho and Mr Cho’s application to set aside the notice to produce. I dismissed Mr Sethi’s application in relation to Hicksons Lawyers, upheld Mr Cho’s application to set aside the notice to produce and ordered Mr Sethi to pay Mr Cho’s costs in relation to those applications for ex tempore reasons given at the time. As it was then 12.50pm, I adjourned the hearing until 2.00pm to deal with Mr Sethi’s 20 September Motion.
Mr Sethi did not appear at 2.00pm nor was he in Court at 2.10pm when I came on the bench. The matter was called outside the Court three times and there was no appearance by him.
I adjourned the hearing until 2.45pm and arranged for my Associate to send an email to Mr Sethi, copied to Mr Cho’s solicitors, noting that…

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 Sethi v Cho (No 5)

Details

AGLC: Sethi v Cho (No 5) [2023] NSWSC 1335
Case: [2023] NSWSC 1335
Decision Date: 03 November 2023

CaseChat Overview and Summary

The case before the court involved the plaintiff, Sethi, against the defendant, Cho, in proceedings related to a series of disputes between the parties. The primary issue was whether Sethi was to be prevented from taking further steps in the proceedings without the leave of the court. This followed a series of non-appearances by Sethi and orders sought that lacked legal foundation, as well as attempts to seek relief similar to motions previously dismissed by the court for abuse of process. Additionally, Sethi sought leave to issue a subpoena which was considered a fishing expedition and lacked a basis for costs or damages.

The legal issues before the court were whether the plaintiff's conduct warranted a prohibition on further steps without leave and whether the orders sought were legally tenable. The court considered the precedents set in previous cases and the abuse of process doctrine, which prevents parties from using court processes to achieve an improper end. The court also examined whether the proposed subpoena was justified and whether there was a basis for the costs and damages claimed.

The court found that Sethi's conduct warranted the prohibition on further steps without leave. The orders sought were not legally tenable, and the proposed subpoena was considered a fishing expedition. The court held that Sethi had abused the court process and that the costs and damages claimed lacked a basis. The court found that Sethi's actions were an abuse of the court's process and that the orders sought were not legally tenable. The court further found that the proposed subpoena was unjustified, and there was no basis for the costs and damages claimed. As such, the court ordered that Sethi should not be permitted to take any further steps in these proceedings without the leave of the court.

The final orders of the court were that Sethi should not be permitted to take any further steps in these proceedings without the leave of the court. The court also noted that any application for leave would need to be supported by appropriate evidence and argument. The court further noted that any future abuse of process would be met with appropriate sanctions.

Orders