Watiwat v Dixon (No 2) [2017] NSWSC 1242

Supreme Court New South Wales

Medium Neutral Citation: Watiwat v Dixon (No 2) [2017] NSWSC 1242 Hearing dates: 18 August 2017 Date of orders: 20 September 2017 Decision date: 20 September 2017 Jurisdiction: Equity Before: Robb J Decision: (1) The plaintiff's application for leave to file a further amended statement of claim is denied.

(2) The defendant's application to amend its notice of motion dated 24 July 2017 is allowed.

(3) The proceedings are dismissed pursuant to rule 13.4 of the Uniform Civil Procedure Rules 2005 (NSW).

(4) The plaintiff is to pay the defendants' costs of the proceedings, including all notices of motion in respect of which a costs order has not already been made. Catchwords: CIVIL PROCEDURE — Interlocutory applications — Application to amend notice of motion — Whether defendants should be granted leave to amend notice of motion — Where defendants sought summary dismissal of plaintiff's claim — Where defendants sought to amend notice of motion to seek summary dismissal on a different basis.

CIVIL PROCEDURE — Pleadings — Amendment — Application to amend statement of claim — Whether proposed amended statement of claim discloses a reasonable cause of action — Whether proposed amended statement of claim has a tendency to cause prejudice or embarrassment or is otherwise an abuse of process.

CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Frivolous or vexatious proceedings — Whether proceedings should be dismissed for failure to disclose a reasonable cause of action — Where plaintiff failed to file a statement of claim in appropriate form — Where plaintiff given multiple opportunities and received pro bono legal assistance — Whether order should be made barring the plaintiff from instituting fresh proceedings in respect of the same or substantially the same causes of action. Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) rr 13.4, 29.9 Cases Cited: Commonwealth Trading Bank v Inglis (1974) 131 CLR 311; [1974] HCA 17 Ebert v Venvil [2000] Ch 484 Hunter v Leahy (1999) 91 FCR 214; [1999] FCA 1075 Stewart v Auckland Transport Board [1951] NZLR 576 Velissaris v Dynami Pty Ltd [2013] VSCA 299 von Risefer v Permanent Trustee Co Pty Ltd [2005] 1 Qd R 681; [2005] QCA 109 Watiwat v Dixon [2017] NSWSC 360 Category: Principal judgment Parties: Bienvenido Watiwat (plaintiff) Stephen Robert Dixon (first defendant) Winnie Leung (second defendant) Carlos Vincenzo (third defendant) Lion Finance Pty Ltd (fourth defendant) Representation: Counsel: R Parsons (defendants)