Modaressi v Aarf [2020] NSWSC 1627

Modaressi v Aarf [2020] NSWSC 1627

The 2020 proceedings constituted an abuse of process because they duplicated the 2019 appeal proceedings that had been dismissed after Pedram Modaressi repeatedly failed to appear and comply with directions, he provided no adequate explanation for that failure, identified no error in the Registrar's dismissal, made no offer to pay the first defendant's costs of the 2019 proceedings, and failed to show substance in the proposed appeal grounds. A stay or security for costs would only require the first defendant to incur further costs without any expected benefit, so dismissal under UCPR r 13.4 was appropriate.

Jurisdiction
Australia
Judgment Date
16 November 2020
Procedural Posture
Common Law Proceedings by Summons Seeking an Extension of Time for Leave to Appeal Against Local Court Orders / First Defendant's Notice of Motion to Dismiss the Summons Filed on 8 September 2020, or Alternatively for Security for Costs
Outcome
Summons dismissed; plaintiff ordered to pay the first defendant's costs.
Legal Topics
['summary Disposal' 'dismissal of Proceedings' 'frivolous or Vexatious Proceedings' 'abuse of Process' 'failure to Appear' 'costs of Dismissed Proceedings' 'stay of Further Proceedings' 'security for Costs']
['civil Procedure' 'appeals'] ['summary Disposal' 'dismissal of Proceedings' 'frivolous or Vexatious Proceedings' 'abuse of Process' 'failure to Appear' 'costs of Dismissed Proceedings' 'stay of Further Proceedings' 'security for Costs']

Case Brief

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Procedural Posture

Common Law Proceedings by Summons Seeking an Extension of Time for Leave to Appeal Against Local Court Orders / First Defendant's Notice of Motion to Dismiss the Summons Filed on 8 September 2020, or Alternatively for Security for Costs

Legal Issues

  1. 1 ['Whether the 2020 proceedings seeking leave to appeal the same Local Court decision as the dismissed 2019 proceedings were vexatious or an abuse of process.' 'Whether the proceedings should be dismissed under Uniform Civil Procedure Rules 2005 (NSW), r 13.4 rather than stayed pending payment of earlier costs or made subject to security for costs.' 'Whether Pedram Modaressi had adequately explained his failure to prosecute the 2019 appeal and his failure to pay or offer to pay the costs of those proceedings.']

Ratio Decidendi

The 2020 proceedings constituted an abuse of process because they duplicated the 2019 appeal proceedings that had been dismissed after Pedram Modaressi repeatedly failed to appear and comply with directions, he provided no adequate explanation for that failure, identified no error in the Registrar's dismissal, made no offer to pay the first defendant's costs of the 2019 proceedings, and failed to show substance in the proposed appeal grounds. A stay or security for costs would only require the first defendant to incur further costs without any expected benefit, so dismissal under UCPR r 13.4 was appropriate.

Court Disposition

Summons dismissed; plaintiff ordered to pay the first defendant's costs.

Orders

  • ['Pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 13.4, dismiss the summons filed on 8 September 2020.' "Order the plaintiff to pay the first defendant's costs of the proceedings, including the costs of the first defendant's notice of motion filed on 24 September 2020."]