Eliezer v The Owners of Strata Plan No 51682

[2015] NSWSC 1172

Supreme Court

New South Wales

Medium Neutral Citation:	Eliezer v The Owners of Strata Plan No 51682 [2015] NSWSC 1172
Hearing dates:	13 August 2015
Decision date:	13 August 2015
Jurisdiction:	Common Law
Before:	Button J
Decision:	(1) By consent, proceedings 2013/00219204 in the Sydney Downing Centre Registry of the Local Court of New South Wales are stayed. (2) By consent, the stay contained in order 1 is to be continued until the proceedings 2015/123687 in this Court are concluded, or further order of this Court. (3) Liberty to apply to either party to return the matter to the Common Law Registrar's list on proof of three days' written notice to the opposing party. (4) The plaintiff must pay the costs of the Owners of Strata Plan 51682 of the proceedings before me.
Catchwords:	PRACTICE AND PROCEDURE – longstanding dispute regarding block of flats – proceedings on foot in Local Court and Supreme Court – whether Local Court proceedings should be stayed until Supreme Court proceedings are resolved – defendant not opposed to stay   COSTS – ex parte application – no notice given to defendant – application unnecessary because of consent of defendant to orders sought – whether the plaintiff should pay the costs of the hearing
Category:	Procedural and other rulings
Parties:	Supriya Eliezer (Plaintiff) The Owners Strata Plan No 51682 (Defendant)
Representation:	Counsel:   Solicitors: Gilbert M Johnstone & Co (Plaintiff) In person (Defendant)
File Number(s):	2015/123687

ex tempore Judgment

Background

1. This matter came before me in the Duty List earlier today in highly regrettable circumstances.

2. The plaintiff, who appeared for herself but informed me that she is admitted as a solicitor, appeared ex parte before lunch. I granted her leave to file in Court a notice of motion and an affidavit sworn by herself, contingent upon any opposition from her opponent in due course.

3. Although the solicitor for the opponents (the Owners Corporation of the apartment block at which the plaintiff is an owner and resident) was well-known to the plaintiff, she had not informed him that she was proposing to come to the Supreme Court today and seek the orders in the motion.

4. Before lunch, I explained to the plaintiff that I was very reluctant to make any orders without hearing both sides of the story. She was content for the matter to be stood down until later today; for my Associate urgently to contact the solicitor and inform him of the proceedings; and for my Associate to provide him with the two documents to which I have referred.

5. After lunch, the solicitor appeared and expressed his contentment with the filing of the two documents. He tendered a copy of a statement of claim in the Local Court, to which I shall return shortly.

6. To state the background with great succinctness, unfortunately there has been a longstanding dispute at the block of flats. In a statement of claim filed in this Court on 27 April 2015, the plaintiff has made a number of serious allegations against the Owners Corporation and other owners. Those proceedings, I understand, are progressing.

7. In the Local Court, the Owners Corporation had filed a statement of claim against Ms Eliezer as long ago as 18 July 2013. Originally a sum reflecting unpaid levies was sought, along with costs incurred in the recovery of the levies, and interest on the levies. Only the second and third claims remain outstanding, the levies having been paid, I understand, after a non-curial process. The sum remaining in question is no more than $8,000.

8. In effect, the motion filed today of the plaintiff seeks to have the proceedings in the Local Court stayed until the Supreme Court proceedings are resolved. The plaintiff is concerned in particular about the possibility that, despite the fact that the matter in the Local Court is listed for a pre-trial review before a Registrar tomorrow, nevertheless the matter could proceed to full hearing on that day.

9. As it turned out, by the end of discussions between Bench and Bar table, the solicitor for the defendant made clear not only that he would not be seeking a hearing tomorrow - apart from anything else, on the basis that his evidence is incomplete - but furthermore that he did not oppose the making of orders 1 and 2 in the motion.

10. In light of the fact that orders 1 and 2 are the subject of the explicit consent of the solicitor appearing on behalf of the plaintiff in the Local Court proceedings, I propose to make them (with very slight grammatical adjustment) without further analysis.

11. That leaves only the question of the costs of today for determination.

Submissions about costs

12. The plaintiff submitted that annexure D to her affidavit of today’s date shows that on 4 August 2015 she sent an email to the solicitor, asking some questions about the litigation. Her position is that that email went unanswered.

13. The same document shows that at 9.40 am on 10 August 2015, she sent an email to the solicitor seeking confirmation of his consent to an adjournment of the Local Court matter tomorrow. That consent was sought "latest by COB, 10 August 2015"; that is, at 5 pm on the same day.

14. The position of the plaintiff is that she never received a response to that latter email.

15. She conceded that she never informed the defendant that she would be coming to Court today, either orally or in writing. Her position was that she was too busy drafting legal documents today, even to make a phone call or send a very short email to the solicitor, putting him on notice of her appearance before lunch.

16. The position of the solicitor, in short, was that there was an electrical problem in the building where his firm is located on the morning of 10 August 2015. Far from accepting that his client should pay the costs of today, his position was that the plaintiff should pay his client's costs. That was on the simple basis that, in light of his consent, all of this - a hearing in the Supreme Court that took no little court time - could have been avoided.

Determination about costs

17. Turning to my determination about costs, in the hearing I respectfully remarked to the parties that I by no means proposed to determine the rights and wrongs of any breakdown in communication that has occurred. And I do not propose to do so, above and beyond the extent necessary to resolve this question of costs.

18. I accept that this litigation, and the situation at the apartment block generally, has taken an emotional and personal toll on the plaintiff. Still and all, it would have taken only two minutes for her to have sent an email this morning to the solicitor for her opponent informing him that, unless the question of the adjournment of the Local Court proceedings tomorrow could be resolved in the next hour or two, she would immediately be filing a motion in the Supreme Court. And yet that was never done. I reject the proposition that the plaintiff was too busy focusing on preparation of her documents to send such an email, or make such a phone call.

19. Of course, if the plaintiff had been in a position to tender such an email, and satisfy me that there had been no satisfactory response to it, the situation with regard to costs may well have been different. But in the circumstances of an ex parte application having been made to the Supreme Court, without any notice to one's well-known opponent, and that application subsequently turning out to be unnecessary because of the consent of the opponent, I consider that the plaintiff should pay the costs of today.

20. Finally, I propose to make a mechanistic order to ensure that this situation cannot arise again.

21. I make the following orders:

1. By consent, proceedings 2013/00219204 in the Sydney Downing Centre Registry of the Local Court of New South Wales are stayed.

2. By consent, the stay contained in order 1 is to be continued until the proceedings 2015/123687 in this Court are concluded, or further order of this Court.

3. Liberty to apply to either party to return the matter to the Common Law Registrar's list on proof of three days' written notice to the opposing party.

4. The plaintiff must pay the costs of the Owners of Strata Plan 51682 of the proceedings before me.

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Decision last updated: 19 August 2015