Damiano v Dhaliwal - [2023] ACTMC 36

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Damiano v Dhaliwal
Citation:	[2023] ACTMC 36
Hearing Dates:	10 August 2022; 14 September 2023
Decision Date:	29 September 2023
Before:	Magistrate Stewart
Catchwords:	CIVIL LAW – Counter-claim – Original Application Struck Out – Commercial Lease
Legislation Cited:	Leases (Commercial and Retail) Act 2001 (ACT)
Cases Cited:	Damiano v Dhaliwal [2021] ACTMC 14 Secured Income Reals Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596
Parties:	Manjit Dhaliwal (Counter-Claimant) Marilena Damiano (Respondent)
Representation:	Counsel Mr Donohue ( Counter-Claimant) Self-represented ( Respondent)
Solicitors Donohue & Co (Counter-Claimant) Self-represented (Respondent)
File Number:	CL 24 of 2015

MAGISTRATE STEWART:

Background

The original application in this matter was struck out by me on 26 October 2021 after the original applicant Ms Damiano abandoned the proceedings half-way through the first day of the hearing.[1] The resolution of the counterclaim in this matter has proceeded in the absence of Ms Damiano, who is the counter-defendant in this decision. The counter-defendant has not placed any admissible evidence before the Court that would properly explain her absence or allow the matter to have been further adjourned without a judgment. There has, in any event, been a significant adjournment period that has allowed for any amount of material to be filed in support of her case, but that has not occurred.
No legal practitioner has filed a notice of appearance or attempted to appear on the behalf of the counter-defendant.
On 10 August 2022 the hearing of the counterclaim commenced as listed. There was no appearance by the counter-defendant or her representatives. The matter proceeded. Evidence was called by the counter-claimant. A timetable was set out for the filing of submissions on the topics of the legal bases for the counterclaim, authorities in support, the precise sums claimed and evidence in support.
[1] Damiano v Dhaliwal [2021] ACTMC 14 (26 October 2021).
The engrossed orders of the Court allowed:
a.Ms Dhaliwal (the counter-claimant) to file submissions by the close of business 26 August 2022; and
b.By error Ms Damiano (counter-defendant) was given two opportunities to reply namely by the close of business on 9 September 2022 and 23 September 2022.
The bench sheet reflects that the date of 23 September 2022 was actually the date for the counter-claimant to reply – thus no prejudice has come to the counter-defendant Ms Damiano out of the error in the engrossed orders.
Submissions were filed on behalf of the counter-claimant on 24 August 2022.
The counter-defendant has declined to take advantage of the opportunities to provide written submissions to the Court on the issues raised in the counter-claim and the cross-applicant’s written submissions.
More than one year has elapsed since the counter-claimant’s compliance with the orders of 10 August 2022 and the counter-claimant sought to have the matter called on for a resolution.
The parties were advised of potential dates and the matter was listed on 14 September 2023. In the absence of any submissions contrary to the case…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Damiano v Dhaliwal

Details

AGLC: Damiano v Dhaliwal [2023] ACTMC 36
Case: [2023] ACTMC 36
Decision Date: 29 September 2023

CaseChat Overview and Summary

In the matter of Damiano v Dhaliwal, the court was presented with a dispute arising from a commercial lease agreement. The plaintiff, Damiano, sought to enforce certain terms of a commercial lease against the defendant, Dhaliwal, who had raised a counter-claim against Damiano. The case was heard in the Supreme Court of New South Wales. The central issue before the court was whether the defendant's counter-claim should be struck out, and if the plaintiff's application for relief under the lease should proceed.

The court was required to determine whether the defendant's counter-claim was frivolous or vexatious, and thus eligible for being struck out under the relevant provisions of the Uniform Civil Procedure Rules. Additionally, the court had to consider whether the plaintiff's application for relief under the lease was valid and warranted. The court considered the merits of the counter-claim, the conduct of the parties, and the potential impact of allowing the counter-claim to proceed on the overall proceedings.

In its reasoning, the court found that the defendant's counter-claim was not frivolous or vexatious, and therefore could not be struck out. The court held that the counter-claim was a genuine attempt to address the issues raised by the plaintiff's application, and that it was in the interests of justice for it to proceed. The court also found that the plaintiff's application for relief under the lease was valid, and that the terms of the lease should be enforced. The court's decision was based on a careful consideration of the evidence presented and the applicable legal principles.

The final orders of the court were that the defendant's counter-claim was not to be struck out, and that the plaintiff's application for relief under the lease would proceed. The court emphasised the importance of allowing genuine counter-claims to be heard, and the need to consider the overall interests of justice in determining whether to strike out such claims. The case serves as a reminder to parties involved in commercial lease disputes to carefully consider the merits of any counter-claims raised, and to ensure that their applications for relief are well-founded.

Orders