Qasim v Mitchell & Ors.

[2022] NSWSC 1543

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Qasim v Mitchell & Ors. [2022] NSWSC 1543

Hearing dates:

7 October 2022

Date of orders:

7 October 2022

Decision date:

07 October 2022

Jurisdiction:

Common Law

Before:

Chen J

Decision:

(1) Order that all references in the orders made on 30 May 2022 and 13 September 2022 to plaintiffs are to be read "first plaintiff", with the consequence that all orders for costs made by the Court on 30 May 2022 and 13 September 2022 are to be borne by the first plaintiff Shaheen Qasim.

(2) Upon entry of order 1, order pursuant to Uniform Civil Procedure Rules 2005 rule 6.29 and/or the inherent jurisdiction of the Court, the second plaintiff be removed from the proceedings bearing number 2021/279779.

(3) Order that the first plaintiff Shaheen Qasim pay the costs of Fred Klein of and incidental to the proceedings 2021/279779.

(4) Those costs are to be payable on and from 15 June 2022 on an indemnity basis.

(5) Order that the summons filed 30 September 2021 be listed for directions before the Registrar on 17 October 2022.

(6) Direct that the first plaintiff file an affidavit of service evidencing service of the summons filed 30 September 2021 on the sixth defendant by 4pm 14 October 2022.

Catchwords:

CIVIL PROCEDURE – Jurisdiction – Where claim commenced in name of person without consent or notice – Person entitled to have orders made against them set aside – Power of Court to set aside – Removal of parties

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Hoskins v Van Den-Braak (1998) 43 NSWLR 290 Qasim v Mitchell [2022] NSWSC 698

Qasim v Mitchell [2022] NSWSC 1231

Category:

Principal judgment

Parties:

Shaheen Qasim (First plaintiff)
Fred Klein (Second plaintiff)
Rachel Deegan (Second defendant/Third respondent)
Yennie Chen (Fourth defendant)

Representation:

Counsel:
Self-represented (First plaintiff)
D Eardley (Second plaintiff)
B Shaw (Second defendant/Third respondent)
S Dow (Fourth defendant)

Solicitors:
Self-represented (First plaintiff)
Legal Exchange (Second plaintiff)
Bridges Lawyers (Second defendant/Third respondent)
DLA Piper (Fourth defendant)

File Number(s):

2021/279779

JUDGMENT EX TEMPORE (REVISED)

Introduction

1. Fred Klein is an accountant. In 2021 he was the accountant to Shaheen Qasim.

2. But they had something else in common. They were both plaintiffs to a Summons filed in this Court on 30 September 2021 (‘the 2021 summons’): the first plaintiff was Shaheen Qasim and the second plaintiff was Fred Klein.

3. Mr Klein says that he was unwittingly involved in that claim: he seeks an order that he be removed as a party, and he seeks the discharge of orders that were made against him.

4. It is necessary to explain how this somewhat remarkable situation has come about. I will explain this in two parts. The first part deals with some matters of background, including the current proceedings in this Court. The second part deals with how it came to be that Mr Klein became a second plaintiff.

Background

The proceedings in this Court

5. The 2021 summons filed in this Court named six defendants. It was signed by the first plaintiff, but not by Mr Klein. It is not easy to summarise the claim, so I will simply set out the orders sought:

“Prerogative Writ *other

Orders sought

1) Claim allowed with dismissal of case 2021 / 00070005.

2) Urgent structural engineering report be obtained for public safety.

3) Mr Anthony Fowler, to meet with Jones Nicholson engineers to confirm & explain the discrepancy of his reports with tampering of evidence in 2012.

4) Reinstatement of Supreme Court proceedings to ensure compliance & public safety”

6. The plaintiffs also claimed the following “relief”:

“1. [1.250,000]

2. [$ 32,000 discovery accountants fees & other fees]”

7. The property located at 5 William Street, Randwick (‘the property’) is a strata plan with 4 units. The first plaintiff is the owner of two units: units three and four. It appears that the first plaintiff purchased those units sometime before 2006. From at least 2006 the first plaintiff made complaints about the condition and maintenance of the property.

8. In 2010 proceedings were commenced in this Court by the first plaintiff against the owners corporation and the strata managers. Drawing upon what has been alleged in the 2021 summons (in particular pars 3-7), in the 2010 proceedings the first plaintiff alleged that there was a failure to maintain the common property that resulted in particular loss and damage to her. Those proceedings were dismissed by way of consent orders made on 10 December 2012. It will be observed that the fourth order in the 2021 summons sought: “Reinstatement of Supreme Court proceedings to ensure compliance & public safety”. I infer the 2010 proceedings were those sought to be reinstated.

9. In 2021, the owners corporation commenced proceedings in the District Court of New South Wales against the first plaintiff seeking to recover outstanding strata contributions. It is unclear, from the material, what the outcome of those proceedings was but I infer, from the first order sought in the 2021 summons (viz.,“Claim allowed with dismissal of case 2021/00070005”) that it was unfavourable to the first plaintiff and I also infer, by the terms of the first order, that the first plaintiff (in effect) seeks to have the claim in that Court dismissed.

10. I have earlier noted that the 2021 summons named six defendants. The first defendant to the summons was the owner of unit one. The second defendant was the owner of unit two. The third defendant were the solicitors appointed by the owners corporation appointed to represent it in proceedings brought in the District Court of New South Wales in 2021 against the first plaintiff for recovery of outstanding strata levies. The fourth defendant was the director of the strata managers for the property. The fifth defendant was a director of a firm of engineers that prepared reports concerning the condition of the property during 2006 and 2007. The sixth defendant – it is by no means clear from the 2021 summons itself – is alleged to have been a solicitor retained by the first plaintiff in connection with her complaints concerning the condition of the property.

11. The first to fifth defendants successfully moved for summary relief – orders were made dismissing the claim against them, with costs, on 30 May 2022: Qasim v Mitchell [2022] NSWSC 698. By further application, a number of the successful defendants (the second, fourth and fifth defendants) secured gross sum costs orders in their favour: Qasim v Mitchell [2022] NSWSC 1231.

The ‘involvement’ of Fred Klein

12. Mr Klein was, as I mentioned, the first plaintiff’s accountant. In his affidavit Mr Klein describes the first plaintiff as “a former client of the accounting practice in which I work. I have been involved preparing taxation returns for the first plaintiff in her own personal capacity and for her superannuation fund”: affidavit of Fred Klein affirmed 5 July 2022, par 5. Later, in that affidavit, he explains that his “only role at the relevant times was to prepare accounting and taxation records for the plaintiff…”: affidavit of Fred Klein affirmed 5 July 2022, par 16. I accept that evidence.

13. In relation to the current proceedings, Mr Klein’s evidence is clear: he has no interest in the proceedings, he did not consent to being a party to them and he did not authorise the first plaintiff to commence proceedings on his behalf: affidavit of Fred Klein affirmed 5 July 2022, pars 2.6, 9, 10, and 16. I accept that evidence.

14. To the extent that Mr Klein may have signed documents in relation to the proceedings – possibly submissions filed on 27 October 2021 – his evidence is that he did so based upon what he was told by the first plaintiff. Importantly he said, and I accept, that he did not understand that he was a plaintiff in the proceedings and did not receive any legal advice when he signed the document: affidavit of Fred Klein affirmed 5 July 2022, pars 12-14. He also said, and I accept, that he relied upon what he was told by the first plaintiff about why he was required to sign the document: essentially because he was told by the plaintiff that “it will assist us getting the records”: affidavit of Fred Klein affirmed 5 July 2022, par 13. Although it was not argued that there was ratification by Mr Klein, I do not accept that on either occasion that there was.

The orders sought

15. By notice of motion dated 4 July 2022, Mr Klein seeks an order that he be removed from these proceedings and, further, that the court varies the orders such that the orders for costs made on 30 May and 13 September 2022 be made only against the first plaintiff.

16. The first, third and fifth defendants although served with Mr Klein’s notice of motion have indicated, in substance, that they will submit to the orders of the court. The fourth defendant has appeared today and he too submits to the orders of the court.

17. The orders sought by Mr Klein should be made. This follows, in my view, from the principles identified and discussed in Hoskins v Van Den-Braak (1998) 43 NSWLR 290 (‘Hoskins’). In that case, Mason P (Priestley and Beazley JJA agreeing) held (at 293):

“An action brought in the name of a plaintiff without that party’s consent… will be stayed and struck out on application of that party, even if application is first made after trial and judgment… This is because the unauthorised action is a nullity, albeit one capable of ratification by the party wrongly joined…

Where proceedings are commenced in the name of several parties but without authority from one of those parties, then the name of the wrongly added party will be struck out, even after final judgment…”

18. On the findings that I have made above – that is, that the proceedings were brought without Mr Klein’s consent and without his authority – Mr Klein is entitled as of right to not only have the orders made against him discharged, but to be removed as a party from the proceedings.

Costs

19. Mr Eardley, who appears for Mr Klein, seeks an order that the first plaintiff pay Mr Klein's costs of the motion and of the proceedings and that those costs be payable on an indemnity basis on and from 15 June 2022.

20. Specifically, Mr Eardley relies upon an email sent to the first plaintiff dated 15 June 2022, Exhibit B, which, by way of summary, sought to have Mr Klein extricated from the proceedings and to have orders that were made against him discharged.

21. That offer was not accepted. In my view, Mr Klein is entitled to costs of the proceedings including his notice of motion and they should be on an indemnity basis on and from 15 June 2022. They should be so because of the offer that was contained within the email dated 15 June 2022 provides a proper basis for costs in this case to be assessed on an indemnity basis.

22. Separately, and in addition, on the findings that I have made, Mr Klein should never have been added as a party and should not have been put to the cost and expense of having to remove him from the proceedings that the first plaintiff filed in this Court on 30 September 2021.

23. In Hoskins, Mason P (at 293) identified that in cases where proceedings have been commenced in the name of a party without their consent and without their authority gave rise to an entitlement “to recover costs on the indemnity basis from a solicitor who wrongly warranted authority to commence the proceedings”.

24. Although the situation there concerned where a solicitor had commenced proceedings without authority, there is no point in principle why it would not apply to the situation here.

25. In my view, therefore, the first plaintiff should pay the second plaintiff's costs on and from 15 June 2022 on an indemnity basis.

Orders

26. I make the following orders:

1. Order that all references in the orders made on 30 May 2022 and 13 September 2022 to plaintiffs are to be read "first plaintiff", with the consequence that all orders for costs made by the Court on 30 May 2022 and 13 September 2022 are to be borne by the first plaintiff, Shaheen Qasim.

2. Upon entry of order 1, order pursuant to Uniform Civil Procedure Rules 2005, rule 6.29 and/or the inherent jurisdiction of the Court, the second plaintiff be removed from the proceedings bearing number 2021/279779.

3. Order that the first plaintiff Shaheen Qasim pay the costs of Fred Klein of and incidental to the proceedings 2021/279779.

4. Those costs are to be payable on and from 15 June 2022 on an indemnity basis.

5. Order that the summons filed 30 September 2021 be listed for directions before the Registrar on 17 October 2022.

6. Direct that the first plaintiff file an affidavit of service evidencing service of the summons filed 30 September 2021 on the sixth defendant by 4pm 14 October 2022.

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Amendments

10 November 2022 - Format

Decision last updated: 10 November 2022