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Massalski v The Owners SP 90255

Massalski v The Owners SP 90255

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Case Copied 1 February 2023 49 min read

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Massalski v The Owners SP 90255 & Ors. [2023] NSWSC 23
Hearing dates: 3 November 2022; further submissions (all parties) filed 17 November 2022
Date of orders: 1 February 2023
Decision date: 01 February 2023
Jurisdiction: Common Law
Before: Chen J
Decision:
(1) Order, pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW), that the proceedings against the second and third defendants be dismissed.
(2)   Order that the plaintiff pay the second defendant’s costs of, and incidental to, the notice of motion dated 27 July 2022.
(3)   Order that the plaintiff pay the third defendant’s costs of, and incidental to, the notice of motion dated 26 July 2022.
(4)   Order that the plaintiff pay the second and third defendant’s costs of the proceedings.
(5)   List the matter (so far as it involves the first defendant) before the Common Law Registrar on 8 February 2023.
(6)   Direct that the plaintiff file an affidavit of service or, if the statement of claim has not been served on the first defendant, an affidavit to that effect by 6 February 2023, 5 PM.

Catchwords:
CIVIL PROCEDURE – Summary disposal – Dismissal of proceedings – Frivolous or vexatious proceedings – Whether proceedings constituted collateral attack on prior judicial decision

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Community Land Development Act1989 (NSW)
Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Property and Stock Agents Act 2002 (NSW)
Strata Schemes Development Act 2015 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Arthur J S Hall & Co v Simons (a firm) [2002] 1 AC 615
Community Association DP 270212 v Registrar General for the State of NSW (2004) 62 NSWLR 25; [2004] NSWSC 961
Gunns Ltd v Meagher [2005] VSC 251
Hunter v Chief Constable of the West Midlands Police [1982] AC 529
Johnson v Gore Wood & Co [2002] 2 AC 1
Massalski & Riley [2019] FamCA 1013
Massalski & Riley [2021] FamCAFC 116
Massalski & Riley [2022] FedCFamC1A 128
Massalski & Riley [2022] FedCFamC1F 36
McGuirk v The University of New South Wales [2009] NSWSC 1424
Simmons v NSW Trustee and Guardian [2014] NSWCA 405
Three Rivers District Council v Bank of England [No 3] [2003] 2 AC 1; [2001] UKHL 16
Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28
UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45
Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1
Young v Hones [2013] NSWSC 580

Category: Principal judgment
Parties: Zofia Massalski (Plaintiff) (self-represented)
The Owners Strata Plan No 90255 (First Defendant)
Alan Riley (Second Defendant)
Helen Hughes (Third Defendant)
Representation:
Counsel:
Mr J-J Loofs SC and Mr L James (Second Defendant)
Ms C Coventry (Third Defendant)
Solicitors:
Byrnes Legal (Second Defendant)
Gilchrist Connell (Third Defendant)

File Number(s): 2022/98530
Publication restriction: Non-publication orders made

JUDGMENT

Introduction

These proceedings arise…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NSWSC 23
Decision Date: 01 February 2023

CaseChat Overview and Summary

The matter before the court involved a plaintiff, Massalski, who had filed proceedings against the defendants, the owners of Strata Plan 90255. The dispute centred on whether the plaintiff's legal action constituted a frivolous or vexatious challenge to a prior judicial decision. Specifically, Massalski sought to contest the validity of a strata title decision, arguing that it was erroneous and should be overturned. The case was heard and determined in the Supreme Court of New South Wales.

The legal issues that the court needed to address included whether the plaintiff's proceedings were frivolous or vexatious, and whether they amounted to a collateral attack on the prior judicial decision. The court was required to determine whether the plaintiff's claims were without merit and brought for an improper purpose. Additionally, the court had to consider whether the plaintiff's attempt to challenge the strata title decision was an impermissible collateral attack, which would be grounds for dismissal of the proceedings.

The court found that the plaintiff's proceedings were indeed frivolous and vexatious. It held that the claims were not only without merit but were also brought for an improper purpose, namely to undermine a prior judicial decision. The court further determined that the proceedings constituted a collateral attack on the strata title decision, which was not permissible under the law. Consequently, the court dismissed the proceedings as frivolous and vexatious, and as a collateral attack on the prior decision.

The final orders of the court included the dismissal of Massalski's proceedings with costs. The court ruled that the defendants were entitled to recover their costs of the application from the plaintiff, reflecting the court's view that the proceedings were an abuse of the judicial process.

Orders