Watiwat v Dixon (No 2) - [2017] NSWSC 1242

Supreme Court

New South Wales

Medium Neutral Citation: Watiwat v Dixon (No 2) [2017] NSWSC 1242
Hearing dates: 18 August 2017
Date of orders: 20 September 2017
Decision date: 20 September 2017
Jurisdiction: Equity
Before: Robb J
Decision:
(1) The plaintiff’s application for leave to file a further amended statement of claim is denied.

(2) The defendant’s application to amend its notice of motion dated 24 July 2017 is allowed.

(3) The proceedings are dismissed pursuant to rule 13.4 of the Uniform Civil Procedure Rules 2005 (NSW).
(4) The plaintiff is to pay the defendants’ costs of the proceedings, including all notices of motion in respect of which a costs order has not already been made.
Catchwords:
CIVIL PROCEDURE — Interlocutory applications — Application to amend notice of motion — Whether defendants should be granted leave to amend notice of motion — Where defendants sought summary dismissal of plaintiff’s claim — Where defendants sought to amend notice of motion to seek summary dismissal on a different basis.

CIVIL PROCEDURE — Pleadings — Amendment — Application to amend statement of claim — Whether proposed amended statement of claim discloses a reasonable cause of action — Whether proposed amended statement of claim has a tendency to cause prejudice or embarrassment or is otherwise an abuse of process.
CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Frivolous or vexatious proceedings — Whether proceedings should be dismissed for failure to disclose a reasonable cause of action — Where plaintiff failed to file a statement of claim in appropriate form — Where plaintiff given multiple opportunities and received pro bono legal assistance — Whether order should be made barring the plaintiff from instituting fresh proceedings in respect of the same or substantially the same causes of action.
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) rr 13.4, 29.9
Cases Cited: Commonwealth Trading Bank v Inglis (1974) 131 CLR 311; [1974] HCA 17
Ebert v Venvil [2000] Ch 484
Hunter v Leahy (1999) 91 FCR 214; [1999] FCA 1075
Stewart v Auckland Transport Board [1951] NZLR 576
Velissaris v Dynami Pty Ltd [2013] VSCA 299
von Risefer v Permanent Trustee Co Pty Ltd [2005] 1 Qd R 681; [2005] QCA 109
Watiwat v Dixon [2017] NSWSC 360
Category: Principal judgment
Parties: Bienvenido Watiwat (plaintiff)
Stephen Robert Dixon (first defendant)
Winnie Leung (second defendant)
Carlos Vincenzo (third defendant)
Lion Finance Pty Ltd (fourth defendant)
Representation:
Counsel: R Parsons (defendants)

Solicitors: CLH Lawyers (defendants)
Plaintiff (self-represented)

File Number(s): 2016/310747
Publication restriction: None

Judgment

The plaintiff in this case is Mr Bienvenido Watiwat. The first defendant is Mr Stephen Dixon, who was the trustee in bankruptcy of Mr Watiwat’s wife, Mrs Bernadita Watiwat. The second and third defendants were each involved in the administration of Mrs Watiwat’s bankruptcy. The fourth defendant was the petitioning creditor who instigated Mrs Watiwat’s bankruptcy.
Mr Dixon commenced proceedings against Mr Watiwat in 2012 to obtain an order pursuant to s 66G of the Conveyancing Act 1919 (NSW) for the…

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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Details

Case: [2017] NSWSC 1242
Decision Date: 20 September 2017

CaseChat Overview and Summary

In the case of Watiwat v Dixon (No 2), the parties were involved in a dispute that was heard by the court. The primary issue at hand was the defendants' request to amend their notice of motion to seek summary dismissal on a different basis. Initially, the defendants had sought summary dismissal of the plaintiff’s claim. Subsequently, they sought to amend their notice of motion to seek summary dismissal based on different grounds. The court had to determine whether the defendants should be granted leave to amend their notice of motion and if the proposed amended statement of claim disclosed a reasonable cause of action.

The court considered whether the amendment would cause prejudice or embarrassment to the plaintiff, and whether it would amount to an abuse of process. Additionally, the court examined whether the proceedings should be dismissed for failure to disclose a reasonable cause of action, especially since the plaintiff had not filed a statement of claim in the appropriate form. Despite the plaintiff being given multiple opportunities to amend and having received pro bono legal assistance, the court also had to decide whether an order should be made barring the plaintiff from instituting fresh proceedings in respect of the same or substantially the same causes of action.

The court reasoned that the defendants should be granted leave to amend their notice of motion, as the proposed amended statement of claim did disclose a reasonable cause of action. The court found that there would be no prejudice or embarrassment to the plaintiff and that the amendment would not amount to an abuse of process. Consequently, the court dismissed the proceedings for failure to disclose a reasonable cause of action. The court also made an order barring the plaintiff from instituting fresh proceedings in respect of the same or substantially the same causes of action.

Orders