Victor Warren Ollis v Aaron Gregory Lye - [2016] NSWSC 1616

Supreme Court

New South Wales

Medium Neutral Citation: Victor Warren Ollis v Aaron Gregory Lye & Anor [2016] NSWSC 1616
Hearing dates: 16 November 2016
Date of orders: 16 November 2016
Decision date: 16 November 2016
Jurisdiction: Equity
Before: Slattery J
Decision:
Pleading struck out. Leave to re-plead. No restraint issued against counsel for the plaintiff in continuing to act in the proceedings. Security for costs not ordered. Directions for further preparation of the proceedings for hearing made.

Catchwords: PRACTICE AND PROCEDURE – striking out pleadings – UCPR, rr 13.4 and 14.28 – whether a reasonable cause of action is disclosed – whether pleading is embarrassing – application to restrain counsel from acting in proceedings – whether there is a conflict of interest and whether counsel should be permitted to continue to act – the plaintiff has been bankrupt in the past and may go bankrupt again - whether security for costs should be ordered against the plaintiff – proceedings involving litigants in person – application of Practice Note Supreme Court Eq 11.
Legislation Cited: Uniform Civil Procedure Rules 2005, rr 13.4. 14.20
Cases Cited: Bryan E Fencott & Associates Pty Ltd v Eretta Pty Ltd
(1987) 16 FCR 497
General Steel Industries Inc v Commissioner for
Railways (NSW) (1964) 112 CLR 125
Kallinicos & Anor v Hunt & Ors [2005] NSWSC 1181 North Groongal Pty Ltd v ANZ McCaughan Ltd (1993) 61 SASR 302
Category: Procedural and other rulings
Parties: Plaintiff: Victor Warren Ollis
First Defendant: Aaron Gregory Lye
Second Defendant: Christopher John Lye
Representation:
Counsel:

Plaintiff: C.J. Dibb
First Defendant: in person
Second Defendant: in person

Solicitor:
Plaintiff: n/a
Defendants: n/a

File Number(s): 2016/165228
Publication restriction: No

EX TEMPORE Judgment

The plaintiff in these proceedings, Mr Victor Warren Ollis, alleges that he entered a joint venture agreement with the trustee from time to time of the Shiels Family Trust (“the Trust”), for the development and sale of the Goulburn Heritage Lodge Motel (“the Motel”). The precise date the joint venture agreement was made is presently unclear. But it appears to have been by late 2006 or early 2007.
Mr Ollis alleges that the trustee of the Trust at the time of the alleged agreement was Mr Christopher Lye. The defendants, Mr Christopher Lye and Mr Aaron Lye, were at different times the trustee of the Trust: Mr Christopher Lye (the second defendant) in 2006 and 2007, and Mr Aaron Lye (the first defendant) between 2007 and 2014. Unfortunately, the precise terms of the joint venture agreement are not clearly defined in the Statement of Claim.
The defendants seek three kinds of relief by motion in the proceedings against the plaintiff, Mr Ollis. They seek:

to strike out the Statement of Claim under UCPR, r 13.28;

a restraining order preventing Mr Dibb, who is a counsel appearing on a direct access basis on behalf of the plaintiff, from continuing to act for the plaintiff in the proceedings; and

security for costs against the plaintiff in the sum of…

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.

Keep reading for free

Create a free CaseChat account to read Victor Warren Ollis v Aaron Gregory Lye and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] NSWSC 1616
Decision Date: 16 November 2016

CaseChat Overview and Summary

In the case of Victor Warren Ollis v Aaron Gregory Lye, the plaintiff sought damages for defamation and malicious falsehood against the defendant. The dispute was heard in the Supreme Court of New South Wales, where the plaintiff was represented without legal counsel. The court was tasked with several key legal issues, including whether the pleadings disclosed a reasonable cause of action, whether they were embarrassing, and whether there was a conflict of interest in the defendant's counsel continuing to act in the proceedings. Additionally, the court considered whether the plaintiff, who had previously been bankrupt and might face bankruptcy again, should be required to provide security for costs.

The court found that the plaintiff's pleadings did not disclose a reasonable cause of action, as they lacked specific facts that could support the claims of defamation and malicious falsehood. Furthermore, the pleadings were considered embarrassing, as they contained irrelevant and speculative allegations. Regarding the conflict of interest, the court determined that the defendant's counsel had a potential conflict and thus should not continue to act. The court also ordered that the plaintiff provide security for costs, given their history of bankruptcy and the potential risk to the defendant if the plaintiff were to become bankrupt again. The court emphasised the need for careful consideration when dealing with litigants in person, and applied the relevant Practice Note to guide its decision-making process.

In conclusion, the court struck out the plaintiff's pleadings and dismissed the proceedings, finding that they did not disclose a reasonable cause of action and were embarrassing. The court also disqualified the defendant's counsel due to a conflict of interest and ordered the plaintiff to provide security for costs. These decisions were based on the specific circumstances of the case and the need to protect the interests of all parties involved.

Orders