Ayoub v The Recyclers & Anor [2019] NSWSC 1508

Ayoub v The Recyclers & Anor [2019] NSWSC 1508

The plaintiff failed to prove, to the requisite standard on the balance of probabilities, that any agreement was made between Mr Donnelly and the defendants to conduct litigation to the plaintiff's disadvantage. The sole documentary evidence (the February 2018 letter) was not reliable, and no credible or corroborating evidence supported the existence of the alleged agreement. The denials by Mr Stewart and Mr Ellicott were accepted, and the inconsistent and unsatisfactory evidence of Mr Donnelly was rejected. Thus, the separate factual question is answered in the negative, and the proceedings must be dismissed.

Jurisdiction
Australia
Judgment Date
05 November 2019
Procedural Posture
Civil / Hearing and Decision on Separate Question (rule 28.2, Ucpr)
Outcome
proceedings dismissed
Legal Topics
['setting Aside Judgment for Fraud' 'agreement to Disadvantage a Litigant' "tutors and Solicitors' Duties" 'standard of Proof in Civil Proceedings' 'alleged Collusion or Conspiracy in Litigation']
['equity'] ['setting Aside Judgment for Fraud' 'agreement to Disadvantage a Litigant' "tutors and Solicitors' Duties" 'standard of Proof in Civil Proceedings' 'alleged Collusion or Conspiracy in Litigation']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Civil / Hearing and Decision on Separate Question (rule 28.2, Ucpr)

Legal Issues

  1. 1 ['Whether Mr Donnelly made an agreement alleged in the statement of claim to act to the disadvantage of the plaintiff and in favour of the defendants during prior Supreme Court proceedings' "Whether prior judgements should be set aside on the grounds of alleged fraudulent agreement between plaintiff's tutor and defendants"]

Ratio Decidendi

The plaintiff failed to prove, to the requisite standard on the balance of probabilities, that any agreement was made between Mr Donnelly and the defendants to conduct litigation to the plaintiff's disadvantage. The sole documentary evidence (the February 2018 letter) was not reliable, and no credible or corroborating evidence supported the existence of the alleged agreement. The denials by Mr Stewart and Mr Ellicott were accepted, and the inconsistent and unsatisfactory evidence of Mr Donnelly was rejected. Thus, the separate factual question is answered in the negative, and the proceedings must be dismissed.

Court Disposition

proceedings dismissed

Orders

  • ['Separate question answered in the negative' 'Proceedings dismissed' 'Stay continued against associated parties as previously ordered']