Eliezer v The Owners – Strata Plan No 51682 [2017] NSWCA 325

Eliezer v The Owners – Strata Plan No 51682 [2017] NSWCA 325

Leave to appeal was refused because the claims for malicious prosecution and abuse of process could not succeed: the Local Court proceedings had not terminated and no improper purpose was pleaded or established; joinder and amendment applications lacked utility as underlying proceedings were dismissed and the proposed claims disclosed no reasonable cause of action.

Parties
Applicant: Supriya Eliezer; First Respondent: The Owners – Strata Plan 51682; Second Respondent: Australian Property Managers Pty Ltd; Third Respondent: Peter Woodbury; Fourth Respondent: Frances Li; Fifth Respondent: Wanqlang Yang; Sixth Respondent: Meimei Xie; Seventh Respondent: Zhisheng Duan; Eighth Respondent: Wei Li Yu; Ninth Respondent: Xin Wang; Tenth Respondent: Ping Kwan Lo; Eleventh Respondent: Leng Lin Leong
Jurisdiction
Australia
Judgment Date
07 December 2017
Procedural Posture
Leave to Appeal / Court of Appeal Judgment
Outcome
Leave to appeal refused; amended summons dismissed with costs.
Legal Topics
Leave to Appeal, Summary Dismissal, Malicious Prosecution, Abuse of Process, Joinder of Parties, Amendment of Pleadings
Civil Procedure Leave to Appeal Summary Dismissal Malicious Prosecution Abuse of Process Joinder of Parties Amendment of Pleadings

Case Brief

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Parties

Supriya Eliezer

Applicant

The Owners – Strata Plan 51682

First Respondent

Australian Property Managers Pty Ltd

Second Respondent

Peter Woodbury

Third Respondent

Frances Li

Fourth Respondent

Wanqlang Yang

Fifth Respondent

Meimei Xie

Sixth Respondent

Zhisheng Duan

Seventh Respondent

Wei Li Yu

Eighth Respondent

Xin Wang

Ninth Respondent

Ping Kwan Lo

Tenth Respondent

Leng Lin Leong

Eleventh Respondent

Procedural Posture

Leave to Appeal / Court of Appeal Judgment

Legal Issues

  1. 1 Whether leave to appeal should be granted against summary dismissal of claims for malicious prosecution and abuse of process
  2. 2 Whether leave to appeal should be granted against dismissal of joinder and amendment applications
  3. 3 Whether underlying proceedings terminated in applicant's favour

Ratio Decidendi

Leave to appeal was refused because the claims for malicious prosecution and abuse of process could not succeed: the Local Court proceedings had not terminated and no improper purpose was pleaded or established; joinder and amendment applications lacked utility as underlying proceedings were dismissed and the proposed claims disclosed no reasonable cause of action.

Court Disposition

Leave to appeal refused; amended summons dismissed with costs.

Orders

  • Amended summons seeking leave to appeal from the judgments delivered and from the orders made by N Adams J on 22 March 2017 and Garling J on 15 June 2017 be dismissed.
  • The applicant is to pay the first respondent's costs in this Court – that is, the costs incurred only by the owners corporation – as agreed or assessed.