(1) Tachnat give security for the costs of the first defendant by payment of funds into Court in the sum of $50,000
(2) Tachnat give security for the costs of the second defendant by payment of funds into Court in the sum of $50,000;
(3) The proceedings against the first defendant be stayed until order (1) above has been complied with;
(4) The proceedings against the second defendant be stayed until order (2) above has been complied with;
(5) The first defendant’s Notice of Motion filed 30 July 2021 and paragraph [16] of the second defendant’s Notice of Motion filed 27 July 2021 seeking security for costs, are to be stood over with liberty to the defendants to restore in order to seek further security for costs;
(6) In regards to the second defendant’s Notice of Motion filed 27 July 2021: Paragraphs [2] and [9] seeking a permanent stay of proceedings are dismissed. Paragraphs [13] and [17] seeking answers to particulars are stood over to the Registrar at 9.00am on 27 April 2021 for directions. The plaintiffs’ claims in relation to drafting pleadings with no reasonable prospects of success, those pursuant to s 192E of the Crimes Act1900 (NSW), and those seeking damages for mental harm as against the second defendant are dismissed. Of the plaintiffs’ remaining claims against the second defendant: in relation to the period until 22 September 2015 those in negligence, and those for breach of contract remain, and for the period after 22 September 2015 the claim in negligence by Tachnat remains. All other claims made by the plaintiffs’ as against the second defendant are struck out.
(7) So far as the second defendant is concerned the plaintiff’s request for particulars needs to be recast now that the surviving claims against her have been narrowed;
(8) The second plaintiff’s Notice of Motion dated 19 June 2021 seeking summary judgment, and the plaintiffs’ Notices of Motion dated 27 July 2021, and 5 August 2021 seeking default judgment and the assessment of damages against both defendants are dismissed;
(9) The first, second and third plaintiffs are to pay the first defendant’s costs of their notices of motion filed 19 June 2021, 5 August 2021, and 27 July 2021 respectively and the first defendant’s Notice of Motion dated 30 July 2021 seeking security for costs. As the second defendant was almost entirely successful in her Notice of Motion, the first, second and third plaintiffs are to pay the second defendant’s costs of the second defendant’s Notice of Motion dated 27 July 2021.
Catchwords:
CIVIL PROCEDURE – Summary Judgment – Summary Dismissal – Stay of Proceedings – Whether there are serious issues to be tried – Whether there is no reasonable cause of action disclosed – Default…
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
Tachnat Pty Ltd v Orsini [2022] NSWSC 393
Case
[2022] NSWSC 393
Decision Date
CaseChat Overview and Summary
The case of Tachnat Pty Ltd v Orsini involved a dispute where Tachnat Pty Ltd sought summary judgment against Orsini and others. The dispute centred on the alleged breach of contract and defamation claims made by Tachnat. The matter was heard in the Supreme Court of New South Wales.
The primary legal issues before the court were whether there were serious issues to be tried, whether the plaintiff had disclosed a reasonable cause of action, and whether a stay of proceedings was warranted. Additionally, the court considered whether default judgment could be granted while the defendants awaited particulars, and the question of security for costs despite an undertaking provided by the defendants.
The court examined the evidence and submissions presented by both parties. It was found that there were indeed serious issues to be tried, and the plaintiff had not disclosed a reasonable cause of action. Consequently, the application for summary judgment was dismissed, and the proceedings were stayed pending the resolution of the serious issues. The court also noted that default judgment could not be granted while the defendants awaited particulars. Furthermore, despite the defendants' undertaking, the court held that they had not provided adequate security for costs or demonstrated their ability to meet any potential costs orders.
The final orders of the court included the dismissal of the application for summary judgment and the stay of the proceedings until the serious issues were resolved. The court further directed that the defendants provide security for costs or evidence of their ability to meet any costs orders.