Smith v Shilkin [2018] NSWSC 1582

Smith v Shilkin [2018] NSWSC 1582

The Court granted a permanent stay of the 2017 proceedings to prevent an abuse of process, as the allegations substantially overlapped with those in the 2018 proceedings, and it would be vexatious and oppressive for the same plaintiffs to pursue two sets of proceedings against the same defendants on overlapping grounds. No declaration regarding non-service was made as admission was placed on record and the parties had no real interest in the matter. Issues of standing and costs were reserved for later determination.

Jurisdiction
Australia
Judgment Date
19 October 2018
Procedural Posture
Equity / Interlocutory Judgment on Stay Motion and Related Service Issues
Outcome
Permanent stay granted in the 2017 proceedings. Other procedural and ancillary orders made. Costs reserved.
Legal Topics
['stay of Proceedings' 'abuse of Process' 'service of Process' 'locus Standi' 'declarations' 'costs']
['practice and Procedure' 'civil Procedure'] ['stay of Proceedings' 'abuse of Process' 'service of Process' 'locus Standi' 'declarations' 'costs']

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Procedural Posture

Equity / Interlocutory Judgment on Stay Motion and Related Service Issues

Legal Issues

  1. 1 ['Whether a permanent stay should be granted in the 2017 proceedings to prevent duplication and abuse of process' 'Whether a declaration regarding non-service should be made after party admission' 'Whether unserved defendants have standing to appear on certain applications']

Ratio Decidendi

The Court granted a permanent stay of the 2017 proceedings to prevent an abuse of process, as the allegations substantially overlapped with those in the 2018 proceedings, and it would be vexatious and oppressive for the same plaintiffs to pursue two sets of proceedings against the same defendants on overlapping grounds. No declaration regarding non-service was made as admission was placed on record and the parties had no real interest in the matter. Issues of standing and costs were reserved for later determination.

Court Disposition

Permanent stay granted in the 2017 proceedings. Other procedural and ancillary orders made. Costs reserved.

Orders

  • ['The 2017 proceedings (2017/119572) are permanently stayed.' 'Plaintiffs admit that service of process in the 2018 proceedings has not taken place on Steven Andrew Shilkin.' 'Plaintiffs to file by 4pm on 23 October 2018 any notice of motion seeking orders for substituted or informal service and related orders in...