Australian Real Estate Relation Pty Ltd (in liquidation) v Farha Diba [2023] NSWSC 1619

Australian Real Estate Relation Pty Ltd (in liquidation) v Farha Diba [2023] NSWSC 1619

The proceedings disclosed no reasonable cause of action and were an abuse of process. The claims against the first and second defendants were in substance the same as claims already ventilated before Black J and Andronos SC DCJ, and any substantive claims were, at their highest, claims ARER might have rather than claims Mr Islam could bring. ARER was in liquidation and Mr Islam had neither the liquidator's consent nor leave to bring derivative proceedings. No cause of action was pleaded against the third, fourth, fifth or sixth defendants, and the third defendant was not shown to be a legal entity capable of being sued.

Jurisdiction
Australia
Judgment Date
21 December 2023
Procedural Posture
Application for Summary Dismissal Under R 13.4 Uniform Civil Procedure Rules 2005 (nsw), Alternatively Strike Out Under UCPR R 14.28 / Hearing of Defendants' Application; Fourth and Sixth Defendants Joined in the Application Under UCPR R 18.6
Outcome
The whole of the proceedings against each defendant was summarily dismissed.
Legal Topics
['summary Dismissal' 'strike Out of Statement of Claim' 'frivolous or Vexatious Proceedings' 'abuse of Process' 'no Reasonable Cause of Action' 'company in Liquidation' 'derivative Proceedings' 'pleading Defects']
['civil Procedure' 'corporations Law'] ['summary Dismissal' 'strike Out of Statement of Claim' 'frivolous or Vexatious Proceedings' 'abuse of Process' 'no Reasonable Cause of Action' 'company in Liquidation' 'derivative Proceedings' 'pleading Defects']

Case Brief

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Procedural Posture

Application for Summary Dismissal Under R 13.4 Uniform Civil Procedure Rules 2005 (nsw), Alternatively Strike Out Under UCPR R 14.28 / Hearing of Defendants' Application; Fourth and Sixth Defendants Joined in the Application Under UCPR R 18.6

Legal Issues

  1. 1 ['Whether the whole of the proceedings should be summarily dismissed under UCPR r 13.4 or the statement of claim struck out under UCPR r 14.28.' 'Whether the proceedings disclosed any reasonable cause of action against the defendants.' 'Whether Mr Islam was authorised to institute or maintain proceedings on behalf of Australian Real Estate Relation Pty Ltd while it was in liquidation.' 'Whether the proceedings were an abuse of process because they repeated disputes already litigated in other proceedings.' 'Whether any claim was pleaded against the third, fourth, fifth and sixth defendants.']

Ratio Decidendi

The proceedings disclosed no reasonable cause of action and were an abuse of process. The claims against the first and second defendants were in substance the same as claims already ventilated before Black J and Andronos SC DCJ, and any substantive claims were, at their highest, claims ARER might have rather than claims Mr Islam could bring. ARER was in liquidation and Mr Islam had neither the liquidator's consent nor leave to bring derivative proceedings. No cause of action was pleaded against the third, fourth, fifth or sixth defendants, and the third defendant was not shown to be a legal entity capable of being sued.

Court Disposition

The whole of the proceedings against each defendant was summarily dismissed.

Orders

  • ['Under r 13.4 Uniform Civil Procedure Rules 2005 (NSW) the whole of the proceedings against each defendant is summarily dismissed.' 'The plaintiff is to pay the costs of the first, second, fourth and sixth defendants.' "Liberty to apply in respect of any special order as to costs on 3 days' notice to each active...