The Defendant, Mr. Shafir, was appointed as the custodian of the Plaintiff’s law practice. The Plaintiff, Mr. Rusnak, claimed that he suffered damages due to Mr. Shafir failing in his duties as a custodian. Mr. Shafir applied to strike the Action pursuant to Rule 3.68 as an abuse of process, and sought Summary Dismissal pursuant to Rule 7.3.

Mr. Rusnak had previously argued his Claims before other Justices, but in each instance the Court had declined to accept those arguments, and had made Orders accordingly. As a result, Master Smart held that Mr. Rusnak was attempting to re-litigate the issues, which amounted to a collateral attack on the prior Orders.

In response to the claim that Mr. Shafir breached a duty towards the Plaintiff, Master Smart stated that no such duty exists. Mr. Shafir did not undertake to act in the best interests of Mr. Rusnak. The Court held that the Action should be struck pursuant to Rule 3.68 because it amounted to an abuse of process. Master Smart indicated that, in the alternative, the Action would have been Summarily Dismissed since the likelihood that the Defendant, Mr. Shafir, would succeed was very high, and there were no issues of merit that genuinely required a Trial.