Cullu v Nielsen [2022] NSWSC 1692

Cullu v Nielsen [2022] NSWSC 1692

The summons and the document entitled "Amendments summons" were wholly defective because they did not identify any proper claim for relief or any basis for a cause of action. The plaintiff's later material was consistent with the conclusion that the proceedings appeared to be frivolous or vexatious and disclosed no reasonable cause of action. It was therefore appropriate to hear the motion in the plaintiff's absence and summarily dismiss the proceedings against both defendants.

Jurisdiction
Australia
Judgment Date
07 December 2022
Procedural Posture
Common Law Proceedings; Notice of Motion for Summary Dismissal / Hearing of First Defendant's Notice of Motion Filed 10 June 2022
Outcome
Proceedings dismissed against both defendants; plaintiff ordered to pay the first defendant's costs.
Legal Topics
['summary Dismissal' 'frivolous or Vexatious Proceedings' 'no Reasonable Cause of Action' 'abuse of Process']
['civil Procedure'] ['summary Dismissal' 'frivolous or Vexatious Proceedings' 'no Reasonable Cause of Action' 'abuse of Process']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Common Law Proceedings; Notice of Motion for Summary Dismissal / Hearing of First Defendant's Notice of Motion Filed 10 June 2022

Legal Issues

  1. 1 ['Whether the proceedings should be dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005.' 'Whether the summons and document entitled "Amendments summons" disclosed any proper claim for relief or basis for a cause of action.' "Whether the Court should proceed with the motion in the plaintiff's absence."]

Ratio Decidendi

The summons and the document entitled "Amendments summons" were wholly defective because they did not identify any proper claim for relief or any basis for a cause of action. The plaintiff's later material was consistent with the conclusion that the proceedings appeared to be frivolous or vexatious and disclosed no reasonable cause of action. It was therefore appropriate to hear the motion in the plaintiff's absence and summarily dismiss the proceedings against both defendants.

Court Disposition

Proceedings dismissed against both defendants; plaintiff ordered to pay the first defendant's costs.

Orders

  • ['The proceedings be dismissed against both defendants pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005.' "The plaintiff pay the first defendant's costs."]