Kostov v YPOL Pty Ltd

By notice of motion filed on 16 November 2016, YPOL Pty Ltd (“the first defendant”) seeks an order pursuant to s. 67 of the Civil Procedure Act 2005 (NSW) (“the Act”) and Rule 12.10 of the Uniform Civil Procedure Rules 2005 (NSW) (“the Rules”) that these proceedings be stayed until the plaintiff has paid the first defendant's assessed or gross sum costs of proceedings previously brought in this court numbered 2016/131955 and styled Adriana Kostov v YPOL Pty Ltd and Jeffrey Easton.

The first defendant also seeks an order pursuant to r. 2.1 of the Rules that the plaintiff desist from communicating with the first defendant, its servants, agents, employees and legal representatives, in connection with the proceedings, or the subject matter of the proceedings, other than by email to a nominated email address.

The first defendant also seeks an order that the plaintiff pay its costs of the motion.

The motion is supported by two affidavits of Malcolm Cameron, solicitor, affirmed on 16 November 2016 and 30 November 2016 respectively. There are various exhibits annexed to the affidavit material. I will return to parts of those exhibits later in this judgment.

It should be noted that the plaintiff forwarded correspondence yesterday to the Registrar of the Court, attaching a letter and an affidavit of 30 November 2016. The accompanying email to the Registrar stated (inter alia) as follows:

The Registrar responded by noting receipt of the plaintiff's correspondence before saying the following:

The notice of motion came before the Registrar this morning and was referred to me as the Duty Judge. The plaintiff has not appeared before either the Registrar or myself today.

The proceedings between the plaintiff and first defendant have something of a history which may be outlined as follows.

On 29 April 2016, the plaintiff commenced proceedings (“the first proceedings”) against the first defendant and Jeffrey Easton (the second defendant). It is not necessary for present purposes to outline the nature of the cause of action brought by the plaintiff in the first proceedings. Quite apart from anything else, the cause of action is very difficult to comprehend from the manner in which the statement of claim in those proceedings was pleaded.

On 11 July 2016 Harrison J made orders dismissing the first proceedings as against the first defendant, setting aside service of the statement of claim on the second defendant, refusing the plaintiff's application to amend the statement of claim and ordering that the plaintiff pay the costs of the first and second defendants as agreed or assessed: Kostov v YPOL Pty Ltd [2016] NSWSC 961.

On 25 August 2016 Rothman J heard a motion brought by the plaintiff seeking an order that the decision of Harrison J be set aside. That motion was dismissed by his Honour, who also ordered that the plaintiff pay the first defendant's costs on an indemnity basis.

On 26 August 2016, the day immediately following Rothman J's dismissal of the plaintiff's motion, the plaintiff brought further proceedings (“the current proceedings”) against the same defendants. Again, it is not necessary for the purposes of disposing of the present motion to detail the allegations in the statement of claim filed in the current proceedings. What can be said is that generally speaking, the allegations in the current proceedings, and the factual substratum which is said to support them, appear to be broadly the same as was the case in the first proceedings.

On 15 November 2016 the solicitors for the first defendant forwarded to the plaintiff a draft application for an assessment of its costs in the first proceedings in the sum of $52,624.50. At the present time, those costs have not been paid.

In recent weeks and months, the plaintiff has taken to forwarding what could only be described as vitriolic and offensive correspondence to directors of, and the solicitors for, the first defendant. That correspondence is contained in the various exhibits to the affidavits of Mr Cameron to which I referred earlier. I do not propose to detail each and every piece of correspondence sent by the plaintiff which might be said to fall into the categories that I have described. Reference to a representative sample of it will demonstrate its general nature.

On 28 September 2016 at 1.32am, the plaintiff sent an email to a number of persons who I infer are directors of the first defendant, as well as to Mr Cameron. The email read in part:

That email forwarded an earlier email sent by the plaintiff to Mr Cameron which contained the following:

On 28 September 2016 at 2:00am the plaintiff forwarded an email to two persons who I infer are directors or employees of the first defendant, stating (inter alia) as follows:

On 29 September 2016 the plaintiff forwarded a further email to a number of persons whom I infer are directors of the first defendant. This email followed an incident on 28 September 2016 when the plaintiff attended the premises of the first defendant and threw raw eggs into the foyer area, and poured red wine into one of the lift carriages operating in the building from which the first defendant conducts its business.

The email of 29 September 2016 was entitled "Enjoy the wine losers" and said the following:

On 4 October 2016, the plaintiff forwarded a further email to a number of persons, some of whom I infer are directors of the first defendant. She expressed a desire for "this to be over" and asked that the matter be "remedied". The email concluded with the following:

In respect of the first of the orders sought in the notice of motion, s. 67 of the Act is in the following terms:

Rule 12.10 of the Rules is in the following terms:

In my view, the circumstances I have outlined are such that the first defendant should be protected against the unpaid costs of the first proceedings which were dismissed by Harrison J, before having to incur further costs defending the current proceedings. This is particularly so in circumstances where the plaintiff's claims in the current proceedings are substantially the same as those which were made in the first proceedings. There should therefore be a stay of the current proceedings pending payment of the costs awarded in favour of the first defendant in the first proceedings: see Pi v Zhou [2016] NSWCA 148 at [31] per Gleeson JA.

As to the second order sought, the correspondence to which I have referred speaks for itself. In McGuirk v University of New South Wales [2010] NSWCA 104, Sackville AJA observed at [147]:

His Honour then said at [162]:

His Honour went on to observe at [163]:

His Honour's observations are directly apposite to the circumstances of the present case. What is also of significance is that in the present case, the actions of the plaintiff have not been limited to simply sending offensive and threatening correspondence, serious though that may be. Her actions have extended, as I have indicated, to attending the first defendant's premises and engaging in what could properly be described as acts of vandalism.

The conduct of the plaintiff is such that the speedy determination of the real issues between the parties requires that the second order which is sought be made. In the absence of such an order, I am satisfied that the actions of the plaintiff would be likely to continue to divert those to whom they are directed from concentrating on the real issues, thus making the statutory objective of a speedy determination of those issues more difficult to achieve.

Accordingly, for those reasons I make the following orders: