Byrnes v Majak [2020] NSWSC 906

Byrnes v Majak [2020] NSWSC 906

No reasonable cause of action is disclosed against the first and third defendants in the Amended Statement of Claim or on material before the Court; possible causes of action in negligence, malicious prosecution, abuse of process, or Wilkinson v Downton tort do not arise on the facts and are not tenable against solicitors acting on instructions from their client. Proceedings should therefore be dismissed as against the first and third defendants.

Jurisdiction
Australia
Judgment Date
25 June 2020
Procedural Posture
Summary Dismissal Application / Motion for Summary Dismissal of Proceedings Against First and Third Defendants
Outcome
Proceedings dismissed against first and third defendants; costs awarded to applicants.
Legal Topics
['summary Dismissal' 'abuse of Process' 'malicious Prosecution' 'negligence' 'tort Law']
['civil Procedure'] ['summary Dismissal' 'abuse of Process' 'malicious Prosecution' 'negligence' 'tort Law']

Case Brief

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Procedural Posture

Summary Dismissal Application / Motion for Summary Dismissal of Proceedings Against First and Third Defendants

Legal Issues

  1. 1 ['Whether the Amended Statement of Claim discloses any reasonable cause of action against the first and third defendants' 'Whether the proceedings against the first and third defendants should be summarily dismissed under UCPR r 13.4' 'Whether any pleaded or inferable cause of action (negligence, abuse of process, malicious prosecution, Wilkinson v Downton tort) is available on the facts']

Ratio Decidendi

No reasonable cause of action is disclosed against the first and third defendants in the Amended Statement of Claim or on material before the Court; possible causes of action in negligence, malicious prosecution, abuse of process, or Wilkinson v Downton tort do not arise on the facts and are not tenable against solicitors acting on instructions from their client. Proceedings should therefore be dismissed as against the first and third defendants.

Court Disposition

Proceedings dismissed against first and third defendants; costs awarded to applicants.

Orders

  • ['The proceedings be dismissed as against the first and third defendants.' 'The Respondent pay costs of the Applicants, of and incidental to the proceedings, on the ordinary basis.' 'Costs are payable forthwith.']