Hill v Krook & Ors

[2007] NSWSC 816

CITATION:	Hill v Krook & Ors [2007] NSWSC 816
HEARING DATE(S):	20 July 2007
JUDGMENT DATE :	20 July 2007
JURISDICTION:	Equity Division
JUDGMENT OF:	Palmer J
EX TEMPORE JUDGMENT DATE:	20 July 2007
DECISION:	Summons dismissed.
CATCHWORDS:	PRACTICE AND PROCEDURE – STRIKE OUT – Defendants seek dismissal of Summons on ground that no proper defendant is joined and on grounds that proceedings are barred by privative provisions of Part 6 Consumer, Trader and Tenancy Tribunal Act.
LEGISLATION CITED:	- Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) – Pt 6 - Strata Schemes Management Act 1996 (NSW)
PARTIES:	Penelope Louise Hill – Plaintiff Robert Duffy Krook – First Defendant Brendan Burke – Second Defendant Paul Howell – Third Defendant John Wilkinson – Fourth Defendant David Weston – Fifth Defendant Body Corporate Services – Sixth Defendant
FILE NUMBER(S):	SC 1896/07
COUNSEL:	In person – Plaintiff E. Cox – Defendant
SOLICITORS:	In person – Plaintiff Courtenay & Co – 1st, 3rd, 4th and 5th Defendants Grace Lawyers Pty Ltd – 6th Defendant

1896/07 Hill v Krook & Ors

JUDGMENT – Ex tempore
20 July, 2007

1    The Plaintiff has filed a Summons against five named persons who constitute the executive committee of Owners Corporation Strata Plan 6699, which owns a residential building at Carabella Street Kirribilli. The Sixth Defendant is a corporation which provides management services to the body corporate.

2    The Plaintiff, who appears in person, seeks a declaration that a levy raised by the Owners Corporation for certain work to be done on the building is void and of no legal effect, and an injunction restraining the Corporation from expending money on certain repairs. From what I can see from the Summons, which has been prepared by Mrs Hill herself, the basis of the claim is that the executive committee of the Corporation did not properly consider quotes for the relevant work to be done. I am simplifying in the extreme the allegations which the Plaintiff makes, but I think that will be sufficient for the purposes of dealing with this application.

3    The First to Fifth Defendants by a Notice of Motion filed on 15 June 2007 seek an order that the Plaintiff's Summons be dismissed. There are two grounds upon which that application is made. The first is that there is no proper defendant to the Summons, in view of the relief claimed.

4    It is clear, in my opinion, that in order for that relief to be granted the only proper defendant in the proceedings is the body corporate itself, namely, Owners Corporation Strata Plan 6699. This has already been pointed out to the Plaintiff on several occasions, one of which was in the Reasons for Decision given by the Consumer, Trader and Tenancy Tribunal on 21 November 2006. Mrs Hill and another resident of the building had brought an application under the Strata Schemes Management Act 1996 (NSW), and also under the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) (“CTTT Act”) seeking various orders. However, the essential order sought was that the special levy of which Mrs Hill complains in these proceedings should be declared void.

5    That application, together with the other ancillary relief claimed therein was dismissed by the Tribunal on 21 November 2006. In the course of the Reasons for Decision, the strata schemes adjudicator pointed out that the proper respondent to the application would have been the body corporate itself. However, the adjudicator wisely went on to deal with the merits of the application as well, although the first ground to which he referred would have been sufficient to dispose of the proceedings.

6    The advice given to Mrs Hill as to the proper identification of the defendant to her claim has not apparently been heeded, although I note from her evidence that Mrs Hill is a retired solicitor. The present Summons, as I say, does not include as a party the Owners Corporation itself. For that reason alone the Summons should be dismissed.

7    However, like the adjudicator in the Consumer, Trader and Tenancy Tribunal, I think it only right that I go on to deal with more fundamental difficulties in the Plaintiff's claim, in the hope that perhaps these reasons will avoid further unnecessary litigation and expense.

8 The second ground upon which the Defendants seek dismissal of the Summons is that even if the Plaintiff had joined the Owners Corporation itself as the sole defendant in these proceedings, these proceedings would have been dismissed as an abuse of process and because it is barred by the privative provisions of Pt 6 of the CTTT Act. The reason is that the very same issue which Mrs Hill seeks to agitate in the Supreme Court proceedings has been dealt with by the Consumer, Trader and Tenancy Tribunal, and has received a ruling on the merits in the decision of the Tribunal on 21 November 2006.

9    The CTTT Act provides a procedure for those who are dissatisfied with the decision of the Tribunal. There is a review procedure provided by the Act, which is an internal procedure of the Tribunal but, more importantly, there are provisions as to the circumstances in which an issue which has been determined in the Tribunal may be brought to the Supreme Court.

10 Part 6 of the CTTT Act prevents a person dissatisfied with a decision of the Tribunal from bringing the same question to this Court, except in certain circumstances. By s.65 it is provided that a Court has no jurisdiction to grant relief ­­- including relief by way of declaratory judgment or order or injunction - in respect of any matter that has been heard and determined in the Tribunal in accordance with the Act.

11    Section 66 provides that, in certain circumstances, a question of law arising in the Tribunal may be brought to the Supreme Court or referred to the Supreme Court for decision. Section 67 provides that if, in respect of any proceedings, the Tribunal decides a question with respect to a matter of law, a party who is dissatisfied may bring the decision to the Supreme Court by way of appeal.

12 The privative provisions of Pt 6 would apply to defeat the Plaintiff’s claim in this Court, unless the Plaintiff were able to point to some exception under s.66 and s.67.

13 I have invited Mrs Hill's submissions directed to two precise points which I have identified as being relied upon by the Defendants, and I have invited her submissions about them. Mrs Hill has not made any submission identifying a ground which would permit her Summons to proceed in the Supreme Court contrary to the provisions of Pt 6 of the CTTT Act.

14 The proceedings in the Tribunal concerned the same issue as Mrs Hill wishes to debate in this Court, that is, the validity of the levy raised by the Owners Corporation. Even if it were not for the privative provisions of Pt 6 of the Consumer, Trader and Tenancy Tribunal Act, the fact that a tribunal of competent jurisdiction has finally determined the issue would mean that to reagitate the same issue in another court would constitute an abuse of process.

15 It seems to me, therefore, that the Plaintiff's Summons should be dismissed, both on the ground that it does not join a proper defendant, and also on the ground that to permit the proceedings to proceed in this Court would be an abuse of process and contrary to the privative provisions of Pt 6 of the CTTT Act.

16    The Plaintiff's Summons is therefore dismissed.

On costs

17    The Defendants in the proceedings seek an order that the Plaintiff pay the costs of the proceedings which have now been dismissed.

18    The Plaintiff, in opposition to an order for costs, draws attention to the many serious allegations which she has made against the executive committee of abuse of position and lack of probity. These same allegations were made before the Consumer, Trader and Tenancy Tribunal and they were dealt with most carefully by the Adjudicator.

19    There was obviously a great deal of material adduced by the Plaintiff in the Tribunal in support of the contentions which she now makes again to me. There was also, as noted in the Adjudicator’s Reasons for Decision, a great deal of material in opposition to those contentions.

20    The Adjudicator was well satisfied that none of these complaints of abuse and improper conduct had been made out. It is clear that Mrs Hill is unable to bring herself to accept that decision and she wishes to continue to agitate her complaints for as long as any court will permit her to do so. The Court does not lend its aid to that type of litigation

21    The Defendants’ costs of these proceedings will be paid by the Plaintiff.

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