Diamond v Birdon Contracting Pty Limited & Anor [2008] NSWLEC 302

Diamond v Birdon Contracting Pty Limited & Anor [2008] NSWLEC 302

Because Mr Diamond commenced the proceedings after becoming an undischarged bankrupt and the proceedings were not for damages or compensation for personal injury or wrong done to him, he was incompetent to bring them and they were a nullity. Independently, the proceedings were an abuse of process because he commenced fresh proceedings against the same respondents while prior costs orders remained unsatisfied and repeated issues raised in earlier proceedings. The proceedings therefore had to be dismissed.

Jurisdiction
Australia
Judgment Date
21 October 2008
Procedural Posture
Application Seeking Declaratory Relief and Consequential Orders Concerning the Validity of a Development Consent and Sand Mining Operations; Respondents' Notice of Motion to Dismiss or Stay Proceedings / Ex Tempore Judgment on Notice of Motion
Outcome
Principal proceeding and applicant's notice of motion dismissed with costs.
Legal Topics
['undischarged Bankrupt Commencing Proceedings' 'open Standing Proceedings Under Environmental Planning and Assessment Act 1979 (nsw) S 123' 'outstanding Costs Orders' 'abuse of Process' 'dismissal of Proceedings' 'security for Costs']
['practice and Procedure' 'bankruptcy' 'environmental Planning and Assessment' 'civil Procedure'] ['undischarged Bankrupt Commencing Proceedings' 'open Standing Proceedings Under Environmental Planning and Assessment Act 1979 (nsw) S 123' 'outstanding Costs Orders' 'abuse of Process' 'dismissal of Proceedings' 'security for Costs']

Case Brief

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Procedural Posture

Application Seeking Declaratory Relief and Consequential Orders Concerning the Validity of a Development Consent and Sand Mining Operations; Respondents' Notice of Motion to Dismiss or Stay Proceedings / Ex Tempore Judgment on Notice of Motion

Legal Issues

  1. 1 ['Whether an undischarged bankrupt was competent to commence the proceedings in his own name.' 'Whether outstanding costs orders from prior proceedings against the same respondents made the new proceedings an abuse of process.' 'Whether the repetition of issues raised in earlier proceedings made the new proceedings an abuse of process.' 'Whether the proceedings should be dismissed, stayed, or made subject to security for costs.']

Ratio Decidendi

Because Mr Diamond commenced the proceedings after becoming an undischarged bankrupt and the proceedings were not for damages or compensation for personal injury or wrong done to him, he was incompetent to bring them and they were a nullity. Independently, the proceedings were an abuse of process because he commenced fresh proceedings against the same respondents while prior costs orders remained unsatisfied and repeated issues raised in earlier proceedings. The proceedings therefore had to be dismissed.

Court Disposition

Principal proceeding and applicant's notice of motion dismissed with costs.

Orders

  • ['The principal proceeding, being the application filed on 29 July 2008, is dismissed.' "The applicant's notice of motion filed on 15 October 2008 is dismissed." "The applicant is to pay the respondents' costs of the principal proceeding, including costs of the first respondent's amended notice of motion filed on 21...