Khattabi v Unilodge Australia Pty Ltd

[2025] QDC 184

DISTRICT COURT OF QUEENSLAND

CITATION:

Khattabi v Unilodge Australia Pty Ltd & Ors [2025] QDC 184

PARTIES:

YAHYA KHATTABI

(Plaintiff)

v

UNILODGE AUSTRALIA PTY LTD

(First Defendant)

And

TOMAS JOHNSSON

(Second Defendant)

And

CEDAR PACIFIC INVESTMENT MANAGEMENT PTY LTD

(Third Defendant)

And

BERNARD FRANCIS ARMSTRONG III

(Fourth Defendant)

FILE NO/S:

2688/25

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

19 November 2025 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

19 November 2025

JUDGE:

Porter KC DCJ

ORDER:

1.   The Claim and Statement of Claim is struck out in respect of the third and fourth defendants without leave to re-plead.  

2.   The plaintiff pay the third and fourth defendants’ costs of the proceedings and the application on the standard basis.

COUNSEL:

The plaintiff appeared in person

A. Morrow for the third and fourth defendants

SOLICITORS:

Dunham Shaw for the third and fourth defendants

1. This is an application for summary judgment or, in the alternative, for the striking out of the pleading by Mr Khattabi, against the third and fourth defendants, Cedar Pacific Investment Management and Bernard Francis Armstrong III. 

1. The case for summary judgment or strikeout is articulated in Ms Morrow’s submissions.  Having read those submissions, the points made there are correct, but I need to explain, a little bit more clearly, why.  Mr Khattabi’s claim involves three torts: trespass to land, detinue, and trespass to goods.  It arises from a conflict between him and those directly responsible for the management of the student accommodation where he was living in September this year. 

1. It seems uncontentious that on or about the 1^st or 2^nd of September 2025, Mr Khattabi had a lease of room 611 in a student accommodation building at Southbank. I infer it was a lease, because that is how it is alleged in the first and second defendants’ defence and Mr Khattabi also refers to a lease ending on 1 February 2026 in his pleading.

1. It appears uncontentious that the landlord, either directly or through the site manager who appears to be the first defendant, and its employees, took steps to re-enter the lease by peaceful repossession, by changing the locks on Mr Khattabi while he was out. An issue arose as to whether it was lawful for the landlord to do so. Mr Khattabi pleaded reliance on section 375 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (the Act), which he interpreted as requiring a police officer to be present when a landlord re-enters rental premises. 

1. I disagree, respectfully, with his construction of that section.  It seems to me it has no impact on whether it was lawful to retake possession by peaceful re-entry.  I construe it in that way because it does not purport to limit that right, and re-entry by retaking peaceful possession is a common law right of any party entitled, on its view at least, to possession of property.  Of course, if they turn out to be wrong, a court might intervene. 

1. I was minded to strike out that allegation as it appears in paragraph 28, but Mr Khattabi submitted correctly that no-one was asking me to do so, and further, that it may be that he can add further provisions which might colour section 375 or provide a separate basis for alleging re-entry by changing the locks is unlawful. He was right to make that submission, not only because it is true no-one was seeking to strike it out, but also because he refers to a further section, 367, that an accommodation agreement cannot be terminated otherwise than under the Act.

1. I am inferring that somewhere in section 367 or otherwise, the Act deals with peaceful re-entry, but in any event, I am going to leave paragraph 28 in place. I maintain my view that section 375 has got nothing to do with this case as alleged in the statement of claim, but it may be that section 367 has. I will leave it up to Mr Khattabi to think about it rather than striking it out.

1. In any event, the causes of action are that on the 1^st of September 2025 at 9.00 am, while he was asleep, someone entered Mr Khattabi's room without legal authority, and that either on the 1^st or the 2^nd of September he demanded the return of his belongings, presumably after the locks were changed, and they were not provided until the afternoon of the 2^nd of September (that was a detinue claim), and further that there was trespass to his goods in the intervening period. 

1. The important thing about those three torts is that they involve acts which give rise to tortious remedies. They are acts which have to be done by a person, and liability lies with the person who did the acts or a person who is vicariously liable for those acts, or a principal in respect of whom the acts were done by a person who is the agent of that principal within the scope of that person’s authority.  No-one else can be liable for those acts.  A third party cannot be liable merely for creating a commercial imperative in those responsible for the acts in question to act promptly or act high-handedly.  

1. The third and fourth defendants were joined in these proceedings on the basis of their alleged ownership and control of UniLodge Southbank, where Mr Khattabi had his room.  Mr Khattabi sought to articulate their liability in this way in paragraph 6 of his Statement of Claim: 

The defendants are connected by ownership and control.  Pamoja SA, established and funds Cedar Pacific Investment Management Pty Ltd, which owns the UniLodge Southbank property.  UniLodge Australia Pty Ltd manages and operates the property on Cedar Pacific’s behalf.  The individual defendants, Johnson and Armstrong, each hold ultimate executive authority within their respective organisations, and together they direct control and are responsible for the conduct complained of. 

1. That allegation, to someone who understands the rules of pleading, is   embarrassing.  Further, it singularly fails to identify any conceivable basis for the applicants in this case, Cedar Pacific Investment Pty Ltd, much less its alleged chief executive Mr Armstrong, to be responsible for the specific acts identified in the pleading. 

1. It might be that Mr Khattabi conceded that Cedar Pacific and Mr Armstrong were not directly involved, but were indirectly involved through ownership chains (however, I would not hold him to this).  That, even if true, would not be a sufficient basis to attract their liability for these specific torts. 

1. Additionally, Mr Armstrong has sworn, and it seems overwhelmingly clear, that the third defendant does not own the property and has not owned the property for some time.  He swore, and the certificate of title confirms, that the owner is the company he identifies, Australian Education (Holdings) 2 Pty Ltd, as trustee.  He explains, consistent with very common commercial practice, that Cedar Pacific was the manager responsible for the construction of the property and, I infer, putting together the package that was either sold or transferred into the trustee of the unit trust, which was and remains the owner of the property. 

1. There is no evidence to the contrary. With respect to Mr Khattabi, it does not matter if this property still shows up as a property that Cedar Investment Management claims some connection with.  It is logical it would, if Cedar was funds manager, or a manager and promoter of construction projects for this kind of work, as Mr Armstrong swears, without contest, it is, because it is a project which they probably wish to present to the investment community as a successful project.   

1. There are other problems with the pleading.  I have endeavoured to explain them to Mr Khattabi.  No-one would question that he has tried to do it properly, but the pleading is fundamentally defective, and he needs to turn his attention to a bit more precision in the identification of who did what, when, in what way, and why somebody else is responsible for it.  There is also a fundamental problem with paragraph 30, which pleads exorbitant amounts for damages for being kept out of your premises for a couple of days, even it was a galling and difficult experience. 

1. What has to happen is that each head of damages must be linked to the breach alleged, identifying material facts that establish how each head of loss arose from that breach, and the amount thereof.  I note that paragraph 30(d) of the statement of claim, which seeks exemplary damages for systemic unlawful conduct, cannot be defended on the basis of this pleading and would have to be struck out.  Although, again, as Mr Khattabi says, no-one is asking me to strike it out against UniLodge and Mr Johnson. 

1. I was wondering whether this was a case for summary judgment or whether I should strike out the proceedings against the third and fourth defendant.  A summary judgment will give rise to judgment estoppels.  The effect of the strikeout is that there will not be judgment estoppels, but of course to commence another proceeding that in any way raised the claims that have already been struck out, at least without a very substantially different factual background properly pleaded and proved, would be an abuse of process and would be struck out anyway. 

1. It is with some trepidation that I do not order summary judgment.  Instead, I am going to order that the proceedings against the third and fourth defendant be struck out, with no liberty to re-plead in this proceeding against the third and fourth defendants. 

1. Mr Khattabi must be extremely careful about making any further allegations against Cedar Pacific or Mr Armstrong if he were to bring another proceeding, unless it was fundamentally different, properly prepared and based on completely different material to that presently before me.  An attempt to relitigate anything raised in this case against those defendants would inevitably be struck out, and probably with indemnity costs as an abuse of process.

1. For those reasons, I strike out the claim and statement of claim in respect of the third and fourth defendants, without leave to re-plead. 

1. Ms Morrow sought costs on an indemnity basis.  There was a very strong argument for it due to the nature of the case as pleaded, and because, to the extent there was any evidence before me as proved, it demonstrated no basis whatsoever in law for the third or the fourth defendants to be liable on the specific causes of action advanced, even allowing for the defects in the pleading. 

1. Ultimately, when I look at the material, it seems to me that although the resistance to the application was ultimately futile, it was not done in a way that amounted to an abuse of process, and in the circumstances, I am not willing to order indemnity costs. 

1. Mr Khattabi submitted that even though the third and fourth defendants had won their application and had his proceedings against them dismissed, Cedar Pacific’s involvement in the business and the manner of the conduct of their business was such that they should bear some responsibility for what occurred. 

1. I respectfully observe that I have got no basis to make findings about the way they conduct their business and further that, of itself, is no reason, even if it were true, why they should not have their costs, when they are brought into proceedings with no proper basis. 

1. For that reason, I order the plaintiff to pay the third and fourth defendants’ costs of the proceedings against the third and fourth defendant, and the application, on the standard basis.