Sethi v Cho (No 5) [2023] NSWSC 1335

Sethi v Cho (No 5) [2023] NSWSC 1335

The plaintiff's 20 September Motion was dismissed because he failed to appear despite notice that the motion would proceed and no explanation was given, and because each substantive order sought lacked merit: there was no basis to link the proceedings with Court of Appeal proceedings, no sufficient cause to set aside or vary Robb J's orders as irregular, UCPR, r 36.16(4) and CPA, s 63 did not assist, the subpoena request lacked a legitimate forensic purpose, and there was no basis for costs or damages. The motion also had the character of an abuse of process, and the plaintiff's repeated attempts and stated intention to file further motions justified an order that he take no further steps...

Jurisdiction
Australia
Judgment Date
03 November 2023
Procedural Posture
Notice of Motion in Supreme Court Equity Proceedings Concerning Orders Sought After NCAT Residential Tenancy Possession Orders / Hearing of the Plaintiff's Notice of Motion Filed on 20 September 2023; Ex Tempore Revised Judgment; Plaintiff Did Not Appear When the Motion Was Called
Outcome
Plaintiff's Notice of Motion filed on 20 September 2023 dismissed with costs; plaintiff restrained from taking further steps in the proceedings without leave of the Court.
Legal Topics
['non Appearance of Plaintiff' 'abuse of Process' 'setting Aside or Varying Orders' 'subpoena Leave' 'costs' 'restriction on Further Steps Without Leave']
['civil Procedure' 'equity' 'residential Tenancy'] ['non Appearance of Plaintiff' 'abuse of Process' 'setting Aside or Varying Orders' 'subpoena Leave' 'costs' 'restriction on Further Steps Without Leave']

Case Brief

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Procedural Posture

Notice of Motion in Supreme Court Equity Proceedings Concerning Orders Sought After NCAT Residential Tenancy Possession Orders / Hearing of the Plaintiff's Notice of Motion Filed on 20 September 2023; Ex Tempore Revised Judgment; Plaintiff Did Not Appear When the Motion Was Called

Legal Issues

  1. 1 ["Whether the plaintiff's Notice of Motion filed on 20 September 2023 should be dismissed in his absence." 'Whether there was any legal basis to align or link these proceedings with Court of Appeal proceedings.' 'Whether orders made by Robb J on 17 August 2023 and 24 August 2023 should be set aside or varied under UCPR, r 36.15(1), UCPR, r 36.16(4) or CPA, s 63.' 'Whether leave should be granted to issue a subpoena to Century 21 West Pacific.' 'Whether the plaintiff had any basis for costs, interest or damages.' 'Whether the plaintiff should be prevented from filing further motions, Court documents or taking further steps in the proceedings without leave of the Court.']

Ratio Decidendi

The plaintiff's 20 September Motion was dismissed because he failed to appear despite notice that the motion would proceed and no explanation was given, and because each substantive order sought lacked merit: there was no basis to link the proceedings with Court of Appeal proceedings, no sufficient cause to set aside or vary Robb J's orders as irregular, UCPR, r 36.16(4) and CPA, s 63 did not assist, the subpoena request lacked a legitimate forensic purpose, and there was no basis for costs or damages. The motion also had the character of an abuse of process, and the plaintiff's repeated attempts and stated intention to file further motions justified an order that he take no further steps...

Court Disposition

Plaintiff's Notice of Motion filed on 20 September 2023 dismissed with costs; plaintiff restrained from taking further steps in the proceedings without leave of the Court.

Orders

  • ["Dismiss the plaintiff's Notice of Motion filed on 20 September 2023." "The plaintiff to pay the defendant's costs in relation to the plaintiff's Notice of Motion filed on 20 September 2023." 'Order that the plaintiff is not to file any further notice of motion, other Court document or take any other steps in these...