Tachnat Pty Ltd v Orsini [2022] NSWSC 393

Supreme Court New South Wales

Medium Neutral Citation: Tachnat Pty Ltd v Orsini [2022] NSWSC 393 Hearing dates: 17 September 2021 Date of orders: 5 April 2022 Decision date: 05 April 2022 Jurisdiction: Common Law Before: Harrison AsJ Decision: The Court orders: (1) Tachnat give security for the costs of the first defendant by payment of funds into Court in the sum of $50,000 (2) Tachnat give security for the costs of the second defendant by payment of funds into Court in the sum of $50,000; (3) The proceedings against the first defendant be stayed until order (1) above has been complied with; (4) The proceedings against the second defendant be stayed until order (2) above has been complied with; (5) The first defendant's Notice of Motion filed 30 July 2021 and paragraph [16] of the second defendant's Notice of Motion filed 27 July 2021 seeking security for costs, are to be stood over with liberty to the defendants to restore in order to seek further security for costs; (6) In regards to the second defendant's Notice of Motion filed 27 July 2021: Paragraphs [2] and [9] seeking a permanent stay of proceedings are dismissed. Paragraphs [13] and [17] seeking answers to particulars are stood over to the Registrar at 9.00am on 27 April 2021 for directions. The plaintiffs' claims in relation to drafting pleadings with no reasonable prospects of success, those pursuant to s 192E of the Crimes Act 1900 (NSW), and those seeking damages for mental harm as against the second defendant are dismissed. Of the plaintiffs' remaining claims against the second defendant: in relation to the period until 22 September 2015 those in negligence, and those for breach of contract remain, and for the period after 22 September 2015 the claim in negligence by Tachnat remains. All other claims made by the plaintiffs' as against the second defendant are struck out. (7) So far as the second defendant is concerned the plaintiff's request for particulars needs to be recast now that the surviving claims against her have been narrowed; (8) The second plaintiff's Notice of Motion dated 19 June 2021 seeking summary judgment, and the plaintiffs' Notices of Motion dated 27 July 2021, and 5 August 2021 seeking default judgment and the assessment of damages against both defendants are dismissed; (9) The first, second and third plaintiffs are to pay the first defendant's costs of their notices of motion filed 19 June 2021, 5 August 2021, and 27 July 2021 respectively and the first defendant's Notice of Motion dated 30 July 2021 seeking security for costs. As the second defendant was almost entirely successful in her Notice of Motion, the first, second and third plaintiffs are to pay the second defendant's costs of the second defendant's Notice of Motion dated 27 July 2021. Catchwords: CIVIL PROCEDURE – Summary Judgment – Summary Dismissal – Stay of Proceedings – Whether there are serious issues to be tried – Whether there is no reasonable cause of action disclosed – Default Judgment – Application for default judgment while defendants awaiting particulars – Security for Costs – Where party has provided undertaking but has not provided security or set out ability to meet costs orders Legislation Cited: Australian Solicitors' Conduct Rules 2015 (NSW), rr 4.1.1, 4.1.3, 14.2 Civil Procedure Act 2005 (NSW), s 67 Legal Profession Uniform Law 2014 (NSW), s 174 Uniform Civil Procedure Rules 2005 (NSW), rr 7.2, 13.1, 13.4, 14.3, 14.28, 16.7, 30.1, 42.21, 43.4, Cases Cited: About life v Maddocks [2021] NSWSC 1370 Across Australia Finance v Bassenger [2008] NSWSC 799 Attwells v Jackson Lalic Lawyers Ptd Ltd (2016) 259 CLR 1; [2016] HCA 16 Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Brundza v Robbie & Co (No 2) (1952) 88 CLR 171 Connellan v Murphy [2017] VSCA 116 Dennis vJoukhador [2021] NSWSC 870 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 Epping Plaza v Bevendale [2010] VCC 805 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Gentry Bros v Wilson Brown & Associates [1992] FCA 592 Giannarelli and Others v Wraith and Others (1988) 165 CLR 543 GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2021] NSWSC 1204 Griffiths v Evans [1953] 1 WLR 1424 Hospital Products Ltd v United States Surgical Corp (1984) 156 CLR 41 Intercraft Cabinets Pty Ltd v Sampas Pty Ltd (1997) 18 WAR 306 Jazabas Pty Ltd v Haddad [2007] NSWCA 291 Kounnas v Citywide Civil Engineering Pty Ltd [2012] NSWCA 287 KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 Live Board Holdings Ltd v Cody Live Pty Ltd [2017] NSWCA 302 Longman v The Queen (1989) 168 CLR 79 Moubarak bht Coorey v Holt (2019) 100 NSWLR 218 Newcastle City Council v Batistatos [2006] HCA 27 Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28 Studer v Boettcher [2000] NSWCA 263 The Nominal Defendant v Cordin [2019] NSWCA 85 Treloar Constructions Pty Limited v McMillan [2016] NSWCA 302 Webster v Lampard (1993) 177 CLR 598 Category: Procedural rulings Parties: Tachnat Pty Ltd (First Plaintiff) Hulio Gash (Second Plaintiff) Rejani Rajan (Third Plaintiff) Julie Orsini (First Defendant) Vera Culkoff (Second Defendant) Representation: Counsel: B McManus (First Defendant) J Catsanos (Second Defendant)