Eliezer v Australian Property Managers Pty Ltd and Ors (No.2)

[2020] FCCA 3013

FEDERAL CIRCUIT COURT OF AUSTRALIA

ELIEZER v AUSTRALIAN PROPERTY MANAGERS PTY LTD & ORS (No.2) [2020] FCCA 3013

Catchwords:
PRACTICE AND PROCEDURE – Application in a case for summary dismissal – whether the amended statement of claim has no reasonable prospects of success – whether the amended statement of claim is frivolous or vexatious – whether the amended statement of claim is an abuse of process – proceedings dismissed under r 13.10 of the Federal Circuit Court Rules 2001 (Cth).

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.13.10

Applicant: SUPRIYA ELIEZER

First Respondent: AUSTRALIAN PROPERTY MANAGERS PTY LTD

Second Respondent: PETER WOODBURY

Third Respondent: FRANCES LI

File Number: SYG 1962 of 2020

Judgment of: Judge Street

Hearing date: 6 November 2020

Date of Last Submission: 6 November 2020

Delivered at: Sydney

Delivered on: 6 November 2020

REPRESENTATION

The Applicant appeared in person via Microsoft Teams

Counsel for the Respondents: Mr A Spencer via Microsoft Teams

Solicitors for the Respondents: Hall and Wilcox

ORDERS

1. The proceedings are dismissed under r 13.10 of the Federal Circuit Court Rules 2001 (Cth).

2. The applicant pay the respondents’ costs fixed in the amount of $10,000.00.

3. Leave is granted to the respondents, if they seek to do so, to file and serve an application in a case for orders under Part 6B of the Federal Circuit Court of Australia Act 1999 (Cth) declaring the applicant a vexatious litigant, affidavit evidence and submissions on or before 20 November 2020.

4. If such an application in a case is filed, it will be listed for hearing at 2:15pm on 18 December 2020 via video and or audio link pursuant to Part 6 Division 5 of the Federal Circuit Court of Australia Act 1999 (Cth).

5. If such an application in a case is filed, the applicant file and serve any affidavit evidence and submissions on or before 10 December 2020.

Date of order: 6 November 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1962 of 2020

SUPRIYA ELIEZER

Applicant

And

AUSTRALIAN PROPERTY MANAGERS PTY LTD

First Respondent

PETER WOODBURY

Second Respondent

FRANCES LI

Third Respondent

REASONS FOR JUDGMENT

1. These proceedings were commenced on 19 August 2020, by a strata or lot holder, being the applicant, purportedly asserting causes of action against the respondent, which is a strata management entity, and two of its employees.

2. The statement of claim filed on 9 August 2020 was patently deficient in failing to identify any proper cause of action and was, on its face, embarrassing.

3. The matter came before the Court on 10 September 2020. On that occasion, the applicant moved to have the Court disqualify itself. The Court dismissed that application, and declined to recuse itself. The Court explained to the applicant on that occasion that the pleading was inadequate and that a proper pleading needed to be put on. The Court made an order in that regard relevantly as follows:

   2. The applicant file and serve an amended statement of claim, properly pleading the material facts and properly particularised, on or before 1 October 2020.

4. The applicant filed a document on 1 October 2020 but it did not, on its face, comply with order 2. It does not identify any material facts, nor is it properly pleaded. The allegations in the statement of claim are broad ranging, unparticularised and, on their face, embarrassing. The pleading refers to “other proceedings”.

5. The respondents, consistent with the Court’s order, filed an application in a case on 15 October 2020 for the proceedings to be dismissed under r 13.10 of the Federal Circuit Court Rules 2001 (Cth).

6. The applicant complains that she did not receive the documents until the following day. The applicant has had ample opportunity, if she wished to do so, to address the deficiencies that were obvious in her statement of claim.

7. The supporting submissions in that regard by the respondents identified the history of the proceedings and the background. The respondents correctly submitted that the amended statement of claim failed to meet even the most rudimentary test for a pleading. There were glaring deficiencies that were identified in the respondents’ submissions. The conclusory assertions in paragraph 10 of the pleading were not ones that were capable of identifying a material fact in respect of a cause of action to which the respondent could plead, nor were there any necessary particulars to support the generalised assertions. Paragraphs 13 and 18 of the pleading, as identified in the respondents’ submissions, suffer from the same vices. Paragraph 19 of the pleading provides no proper particulars, does not identify a material fact in respect of a cause of action that is identifiable and is embarrassing and the Court accepts the submission of the respondents that it is scandalous. The Court accepts the respondents’ submission that paragraph 20 of the pleading is nonsensical. Paragraph 22 of the pleading also fails to properly identify a material fact in respect of an identifiable cause of action, and is not properly particularised. Paragraphs 28 to 40 of the pleading do not properly plead the material facts of any recognisable cause of action and do not identify conduct of the respondents to support the pleading, nor are there proper particulars.

8. It is apparent from the material that has been put on that there has been a Supreme Court of New South Wales proceeding involving the applicant and, it appears, the first respondent, that has given rise to adverse costs orders and steps under the Bankruptcy Act 1966 (Cth).

9. It is not necessary for the Court to determine whether the defects in the pleading in the present case are of the same nature as identified in the Supreme Court of New South Wales proceedings. It is sufficient to identify, and the Court accepts the submission, that the amended statement of claim, on its face, is frivolous and vexatious, discloses no reasonable cause of action and, on its face, is an abuse of process and has no reasonable prospects of success.

10. The Court accepts the respondents’ submissions that were advanced that the proceedings should be dismissed under r 13.10 of the Federal Circuit Court Rules 2001 (Cth).

I certify that the preceding ten (10) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 6 November 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate:

Date: 15 December 2020