Khanna v Baweja

[2017] NSWDC 388

District Court

New South Wales

Medium Neutral Citation:	Khanna v Baweja [2017] NSWDC 388
Hearing dates:	1 September 2017
Date of orders:	01 September 2017
Decision date:	01 September 2017
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	(1)   Strike out all existing pleadings of the plaintiff, including the Amended Statement of Claim filed 15 June 2017. (2)   Direct that no motion is to be filed by the plaintiff, other than a motion seeking leave to file a Further Amended Statement of Claim and, if desired, joinder of Mrs Khanna as a plaintiff, and no notices to produce are to be served or called upon, until such time as the plaintiff has been given leave to file a Further Amended Statement of Claim. (3)   Grant leave to the defendants to relist and renew their applications for dismissal of the proceedings in the event that leave is not granted for the filing of the Further Amended Statement of Claim by 31 October 2017. (4)   Plaintiff to pay the defendants’ costs of today.
Catchwords:	CIVIL PROCEDURE — pleadings — striking out — no reasonable cause of action or defence – tendency to cause embarrassment - amended pleading not provided
Category:	Procedural and other rulings
Parties:	Sanjeev Khanna (plaintiff) Jaskeerat Singh Baweja (first defendant) Powerlist Pty Limited Trading As Response Real Estate (Baulkham Hills) (second defendant)
Representation:	Counsel: Ms T A Berberian (first defendant) Mr Buterin (second defendant)   Solicitors: Colin Biggers & Paisley (first defendant) Moray & Agnew (second defendant)
File Number(s):	2017/80538
Publication restriction:	None

Judgment

INTRODUCTION

1. Sanjeev Khanna and his wife formerly lived in residential premises owned by Jaskeerat Baweja. Mrs Khanna was the tenant under a residential tenancy agreement. Mr Khanna sues the former landlord, Mr Baweja, and the managing agent.

2. The matter comes before the Court for the hearing of various interlocutory motions. The defendants each seek summary dismissal of Mr Khanna's claim, to strike out his claim, or alternatively, substantial security for costs.

3. Mr Khanna is self-represented. He has filed four motions, including one for leave to file an Amended Statement of Claim. Mr Khanna indicated that he now seeks to amend the proposed amended claim and thus, his application has in the course of the hearing become one to seek leave to file a Further Amended Statement of Claim, the contents of which have not yet been finalised.

4. I propose to deal first with the defendants’ motion.

BACKGROUND

5. The defendants assert that Mr Khanna's claims have already been ventilated before the New South Wales Civil and Administrative Tribunal (“NCAT”) and dismissed. An appeal to the review panel was also dismissed.

6. Proceedings before NCAT were brought in the name of Mrs Khanna, apparently because she was the named tenant under the residential tenancy agreement. Mr Khanna appears to accept both that the claim maintained by Mrs Khanna before NCAT, in which he appeared and conducted by leave, and his proceedings before this Court raise the same matters. He asserts that NCAT did not properly consider his case and his evidence.

7. Mr Khanna’s current claim is for return of rent whilst he resided at the premises, for the capital gain in the value of the premises that occurred whilst he was an occupier, for damages to some business property that became mouldy or otherwise was damaged in the garage of the premises, and he also seeks a penalty against the defendants. To support these claims, Mr Khanna alleged that the premises had no relevant approvals in place. He also alleges that on at least one occasion Mr Baweja had dishonestly hidden his identity by not identifying his middle name, and as a result, Mr Khanna has chosen to refer to Mr Baweja in his most recently filed pleading as “The unidentified".

8. Mr Khanna also alleges that the business name of the managing agent is not correct in the landlord's managing agency agreement. Mr Khanna also alleges that he paid a deposit of $5,000 to buy the premises and although he refused to proceed with the purchase on account of the condition of the premises, he nevertheless claims he is entitled to the lost capital gain as he remained the occupier. Mr Khanna occupied the premises since about 2010. Mr Baweja purchased the premises in 2013.

9. The current dispute seems to date back to shortly after the expiry of the last residential tenancy agreement in early March 2016 when the landlord gave notice of a proposed rental increase from $470 to $510 per week which, on Mr Khanna's claim, is stated to be the first increase in the rent since at least 2014.

DIFFICULTIES

10. There are a number of problems with Mr Khanna's pleading. It is not easily able to be understood and most of it is in a form so unclear that I regard it as embarrassing. What is clear from it is:

1. that Mrs Khanna is not a party;

2. that Mr Khanna has not provided a proper address for service but has included his old address at the landlord's premises; and

3. that Mr Khanna continually refers to Mr Baweja as, "The unidentified".

11. It may be that Mr Khanna has an appropriate separate claim independent of the residential tenancy agreement entered by Mrs Khanna, but the nature of that claim cannot currently be discerned. Any claim for refund of rent whilst Mr Khanna and his wife occupied the premises, apparently without complaint, seems problematic. At least it seems this claim could not be maintained without Mrs Khanna as a party.

12. The other two matters in the pleading to which I have referred: the offensive manner of referring to the landlord (a manner that was not adopted by Mr Khanna in oral submissions) and the failure of Mr Khanna to provide an address for service, must also be remedied.

13. As I indicated, the current pleading is embarrassing and does not disclose a reasonable cause of action. I propose to strike it out.

14. There appears to be a real likelihood that the proceedings are an abuse of process, including because they constitute an inappropriate re-agitation of Mrs Khanna's claim before NCAT. But those matters cannot finally be determined until a coherent Statement of Claim is filed. Any future Statement of Claim must include a proper designation of the first defendant, either by his full name, part of his full name, or by his title as “The first defendant".

15. No further relief should be considered until the manner and form of the plaintiff's claim is first remedied. I do not propose to grant leave in respect of the filing of a Further Amended Statement of Claim that does not yet exist. Mr Khanna is not to be precluded by these orders from filing a motion to seek such leave but leave will not likely be given to file that claim unless it plainly alleges the facts that constitute a proper cause of action entitling the relief sought. A motion for leave to file a Further Amended Statement of Claim may, if it be thought appropriate, include an application to join Mrs Khanna as a plaintiff.

16. I propose to make orders that will allow the plaintiff two months to get his pleadings in order.

ORDERS

17. The orders I make are:

1. Strike out all existing pleadings of the plaintiff, including the Amended Statement of Claim filed 15 June 2017.

2. Direct that no motion is to be filed by the plaintiff, other than a motion seeking leave to file a Further Amended Statement of Claim and, if desired, joinder of Mrs Khanna as a plaintiff, and no notices to produce are to be served or called upon, until such time as the plaintiff has been given leave to file a Further Amended Statement of Claim.

3. Grant leave to the defendants to relist and renew their applications for dismissal of the proceedings in the event that leave is not granted for the filing of the Further Amended Statement of Claim by 31 October 2017.

4. Plaintiff to pay the defendants’ costs of today.

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Decision last updated: 31 January 2018