NSW Caselaw
New South Wales Court of Appeal
CITATION: Project 28 Pty Ltd (Formerly Narui Gold Coast Pty Ltd) v Barr; Project 28 Pty Ltd (Formerly Narui Gold Coast Pty Ltd ) v Tim Barr Pty Ltd & Ors [2005] NSWCA 240
HEARING DATE(S): 05/07/05
JUDGMENT DATE: 25 July 2005
JUDGMENT OF: Hodgson JA at 1; Ipp JA at 2; Campbell AJA at 124
DECISION: (1) The application for leave to appeal in the House Proceedings (CA 41018/04) is dismissed with costs (2) The application for leave to appeal in the Lease Proceedings (CA 41019/04) is granted (3) The appeal in regard to the Lease Proceedings is upheld and the orders made by Palmer J in regard thereto are set aside (4) The Lease Proceedings are stayed until Austcorp provides TBPL and Mr Barr with an indemnity against any costs that they might be ordered to pay Narui (5) TBPL and Mr Barr to pay the costs of the application for leave to appeal and the appeal in the Lease Proceedings as well as the costs of the application for a stay of the Lease Proceedings before Palmer J.
CATCHWORDS: Maintenance and champerty - Dismiss or stay proceedings - Focus should be on the tendency of the funding arrangements to produce an abuse of process rather than whether champerty and maintenance exist - Whether it is reasonably arguable that the funder of the proceedings has a genuine commercial interest in their subject matter - The interest must be rights-based and not a mere hope. - Abuse of process - Dismiss or stay of proceedings - Focus should be on the tendency of the funding arrangements to produce an abuse of process rather than whether champerty and maintenance exist - Relevant factors include the existence of a reasonably arguable genuine commercial interest and the control of proceedings by a person not formally a party to them - Lack of proportionality between the value of the rights, the subject of the proceedings, and any subsisting right independent of the proceedings does not necessarily lead to a tendency to amount to an abuse of process - Person controlling the proceedings in the name of the nominal plaintiff has no potential liability for the successful defendant's costs leading to a tendency to amount to an abuse of process. D
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