Quach v ATM Residential Pty Ltd - [2022] ACTSC 210

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Quach v ATM Residential Pty Ltd
Citation:	[2022] ACTSC 210
Hearing Date:	8 August 2022
DecisionDate:	19 August 2022
Before:	McCallum CJ
Decision:	(1) Pursuant to r 230 of the Court Procedures Rules, remove ATM Residential Pty Ltd as the defendant to the proceedings; (2) Order that the plaintiff pay the defendant’s costs; (3) Dismiss the proceedings.
Catchwords:	CIVIL LAW – PRACTICE AND PROCEDURE – removal of parties – whether defendant has been inappropriately or unnecessarily included as a party to proceedings
Legislation Cited:	Court Procedures Rules2006 (ACT) rr 230, 1147
Cases Cited:	Donoghue v Stephenson [1932] AC 562
Parties:	Michael Quach ( Plaintiff) ATM Residential Pty Ltd t/a McGrath North Canberra ( Defendant)
Representation:	Counsel Self-represented ( Plaintiff) J Moffett ( Defendant)
Solicitors Self-represented ( Plaintiff) McInnes Wilson Lawyers ( Defendant)
File Number:	SC 40 of 2022

McCallum CJ:

By originating process filed on 10 March 2022, Michael Quach seeks various remedies against ATM Residential Pty Ltd trading as McGrath North Canberra. In broad terms, Dr Quach's complaint is that a property for sale which he inspected in November 2019 and for which he claims to have made the highest offer was later sold to another person at a lower price. The relief sought includes annulment of the contract of sale of the property, an order that the contract of sale be awarded to Dr Quach, compensatory damages, interest and costs.

Dr Quach also seeks an injunction preventing the future sale of the property pending the determination of these proceedings. Although the named defendant is ATM Residential Pty Ltd (to which I will refer to as “ATM”), the complaints specified in the pleading are directed exclusively to an individual, Mr Michael Fay. The pleading does not assert or seek to explain any connection between Mr Fay and ATM. ATM says there is none and that Dr Quach has sued the wrong defendant.

By application in proceedings filed on 19 July 2022, ATM seeks to protect its position in various ways. The principal relief sought in the application is an order that ATM be removed as a party to the proceedings pursuant to r 230 of the Court Procedures Rules2006 (ACT) or that summary judgment be given for ATM against Dr Quach pursuant to r 1147 of the Rules.

Alternatively, ATM seeks an order for security for costs in the sum of $130,000. The basis for that aspect of the application is that Dr Quach is listed as a vexatious litigant in New South Wales and has had a number of costs orders made against him. ATM entertains a concern as to Dr Quach's ability to meet its legal costs in the event that his claim is unsuccessful. ATM did not seek to prove that Dr Quach has failed to pay the costs he has been ordered to pay in various other proceedings. However, it was clear enough from his statements from the Bar table that he…

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.

Keep reading for free

Create a free CaseChat account to read Quach v ATM Residential Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] ACTSC 210
Decision Date

CaseChat Overview and Summary

The plaintiff, Michael Quach, filed an originating process against ATM Residential Pty Ltd t/a McGrath North Canberra, seeking various remedies for an alleged sale of a property at a lower price than his offer. ATM applied to be removed as a party to the proceedings, arguing that it had no connection to the property sale and was not the proper defendant. The court had to decide whether ATM should be removed as a party under r 230 of the Court Procedures Rules 2006 (ACT) or whether there were grounds for ATM to receive an order for security for costs.

The court found that Dr Quach had sued the wrong entity and that ATM should be removed as a party to the proceedings. The court was satisfied that the proceedings should be dismissed due to the clear evidence that ATM had been inappropriately and unnecessarily included as the only defendant. The court rejected Dr Quach's arguments that ATM was somehow connected to the property sale or that it was operating in two business development areas in breach of its franchise agreement. The court held that the relief sought by Dr Quach was not ATM's concern and that ATM had been inappropriately and unnecessarily included as the defendant in the proceedings.

The court ordered that ATM Residential Pty Ltd be removed as the defendant to the proceedings, ordered that the plaintiff pay the defendant's costs, and dismissed the proceedings. The court did not consider it appropriate to make a pre-emptive order precluding Dr Quach from suing ATM again on the same facts. However, the court noted that if Dr Quach were to bring proceedings against ATM again on the same facts, those proceedings should not be permitted to be prosecuted until the costs order made by the court had been satisfied.

Orders