Majak v Rose & Ors [2022] NSWSC 1697

Majak v Rose & Ors [2022] NSWSC 1697

The plaintiff failed to establish that any of the ADVO proceedings were brought for a predominantly improper purpose or misused to obtain a collateral advantage; the evidence and prior judicial determinations established they were brought for protection; there was no evidence of conspiracy or fraud; the third defendant, as solicitor, was not a party to the proceedings and cannot be liable for abuse of process; thus, the tort of collateral abuse of process was not made out and all claims fail.

Parties
Plaintiff: Zofia Bozena Majak; First Defendant: Alan Wesley Rose; Second Defendant: Shelia Jasmin Rebeiro; Third Defendant: Marc Riviere
Jurisdiction
Australia
Judgment Date
16 December 2022
Procedural Posture
Principal Judgment / Final Decision
Outcome
Proceedings dismissed
Legal Topics
Conspiracy, Fraud, Collateral Abuse of Process, Apprehended Domestic Violence Orders
Torts Conspiracy Fraud Collateral Abuse of Process Apprehended Domestic Violence Orders

Case Brief

Summary, issues, holding and outcome

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Parties

Zofia Bozena Majak

Plaintiff

Alan Wesley Rose

First Defendant

Shelia Jasmin Rebeiro

Second Defendant

Marc Riviere

Third Defendant

Procedural Posture

Principal Judgment / Final Decision

Legal Issues

  1. 1 Whether proceedings brought by the first defendant for Apprehended Domestic Violence Orders were undertaken for an improper purpose or impermissibly used
  2. 2 Whether there was a conspiracy between the defendants to injure or deprive the plaintiff of her rights in property settlement
  3. 3 Whether the process was misused to gain a collateral advantage outside the purposes of the legal process

Ratio Decidendi

The plaintiff failed to establish that any of the ADVO proceedings were brought for a predominantly improper purpose or misused to obtain a collateral advantage; the evidence and prior judicial determinations established they were brought for protection; there was no evidence of conspiracy or fraud; the third defendant, as solicitor, was not a party to the proceedings and cannot be liable for abuse of process; thus, the tort of collateral abuse of process was not made out and all claims fail.

Court Disposition

Proceedings dismissed

Orders

  • The proceedings are dismissed.
  • The plaintiff is to pay the costs of each of the first, second and third defendants, as agreed or assessed.