Quach v McIntyre

Case [2024] FCA 564

FEDERAL COURT OF AUSTRALIA

Quach v McIntyre [2024] FCA 564

File number(s): QUD 16 of 2024
QUD 39 of 2024
Judgment of: THAWLEY J
Date of judgment: 28 May 2024
Catchwords:

PRACTICE AND PROCEDURE – application for summary dismissal – whether applicant has no reasonable prospect of successfully prosecuting a proceeding alleging cartel conduct against two individuals – no reasonable prospects of success – application for summary dismissed granted

PRACTICE AND PROCEDURE – application for recusal – where docket judge refused applicant’s request to issue subpoenas – where docket judge previously dismissed applicant’s application for leave to appeal in a different proceeding – both matters insufficient to give rise to a reasonable apprehension of bias

Legislation:

Competition and Consumer Act 2010 (Cth) ss 6(2C)(n), 45AD, 45AF, 45AG, 45AJ, 45AK

Federal Court of Australia Act 1976 (Cth) s 31A

Property and Stock Agents Act 2002 (NSW)

Federal Court Rules 2011 (Cth) r 26.01
Cases cited:

Prior v South West Aboriginal Land and Sea Council Aboriginal Corporation [2020] FCA 808

Quach v Australian Health Practitioner Regulation Agency [2021] FCA 313

Quach v Australian Health Practitioner Regulation Agency (Adjournment) [2023] FCA 576

Quach v Australian Health Practitioner Regulation Agency (Extension of Time) [2023] FCA 578

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; 409 ALR 65

Spencer v Commonwealth [2010] HCA 28; 241 CLR 118

Taylor v Attorney-General (Cth) [2019] HCA 30; (2019) 372 ALR 581
Division: General Division
Registry: Queensland
National Practice Area: Commercial and Corporations
Sub-area: Economic Regulator, Competition and Access
Number of paragraphs: 53
Date of hearing: 23 May 2024
Counsel for the applicant:  The applicant was self-represented
Counsel for the respondent in QUD 16 of 2024 Mr M Windsor
Solicitor for the respondent in QUD 16 of 2024 Small Myers Hughes Lawyers
Counsel for the respondent in QUD 39 of 2024   Mr M W P Ziebell
Solicitor for the respondent in QUD 39 of 2024 Hunt and Hunt Lawyers

ORDERS

QUD 16 of 2024
BETWEEN:

DR MICHAEL VAN THANH QUACH

Applicant
AND:

MARK PHILLIP MCINTYRE

Respondent

ORDER MADE BY:

THAWLEY J

DATE OF ORDER:

28 MAY 2024

THE COURT ORDERS THAT:

1.The proceeding be summarily dismissed under s 31A of the Federal Court of Australia Act 1976 (Cth).

2.The applicant is to pay the costs of the respondent as agreed or assessed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

QUD39 of 2024
BETWEEN:

DR MICHAEL VAN THANH QUACH

Applicant
AND:

HELEN JAYNE DOROTHY DAVENPORT

Respondent

ORDER MADE BY:

THAWLEY J

DATE OF ORDER:

28 MAY 2024

THE COURT ORDERS THAT:

1.The proceeding be summarily dismissed under s 31A of the Federal Court of Australia Act 1976 (Cth).

2.The applicant is to pay the costs of the respondent as agreed or assessed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

THAWLEY J:

INTRODUCTION

  1. The respondents in two separate…

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Details
AGLC
Quach v McIntyre [2024] FCA 564
Case
[2024] FCA 564
Decision Date

CaseChat Overview and Summary

Dr Quach filed a proceeding against Mark McIntyre and Helen Davenport, alleging cartel conduct under the Consumer and Competition Act 2010. The Federal Court was required to decide two interlocutory applications: an application for summary dismissal and an application for the judge to recuse themselves. Dr Quach’s application for summary dismissal was grounded on the lack of reasonable prospects of successfully prosecuting the proceeding. The court found that the statements of claim did not disclose a reasonable cause of action, and the proceeding was effectively an abuse of process. The application for recusal was based on the judge's previous decision in a different proceeding and the refusal to issue subpoenas. The court found that these facts did not give rise to a reasonable apprehension of bias. Consequently, the application for summary dismissal was granted, and the proceeding was dismissed. The applicant was ordered to pay the respondent’s costs.

Orders

Orders of the court

1. The proceeding be summarily dismissed under s 31A of the Federal Court of Australia Act 1976 (Cth).

2. The applicant is to pay the costs of the respondent as agreed or assessed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

On 6 May 2024, Dr Quach filed an amended statement of claim in QUD 39 of 2024. The statement of claim was in the following terms: Background 1.Helen Jayne Dorothy Davenport is an on-site residential property manager at Lennox Head Beachfront Apartments (SP45001), 77-83 Ballina Street Lennox Head NSW 2478. 2. The property management of SP48462, 39-41 Lawson Street Byron Bay NSW 2481, is a competing business with the respondent in the Byron Bay holiday letting market. 3. It is a requirement under the by-laws of SP48462, 39-41 Lawson Street Byron Bay NSW 2481, that the property manager owns part of the strata. The respondent does not own any part of the strata of SP48462.4.The [applicant] purchased from the respondent’s competitor, the property management rights business at SP48462, 39 – 41 Lawson Street Byron Bay NSW 2481, which settled on 29 June 2023. 5. There was no vacancy for a property manager at SP48462, 39 – 41 Lawson Street Byron Bay NSW 2481.Cartel conduct 6. Helen Jayne Dorothy Davenport is directly or indirectly installed by another real estate agent(s) as the property manager for SP48462, 39 – 41 Lawson Street Byron Bay NSW 2481. 7. On 28 September 2023, the respondent stated in an email, ‘I will be coming onsite as I will be running 11 out of the 12 apartments and just waiting for communication about the 12th.’ 8.The respondent and her competitor, prevented, restricted and limited the capacity of the [applicant] to operate holiday letting at Byron Bay. 9.The respondent was provided with unrestricted access to SP48462 by her competitor, even though, she does not have any standing in the strata of SP48462.10. The respondent withheld access to key facilities, such as laundry and the [applicant’s] own cupboard used for linen storage.11.The respondent charges higher room charges compared to her competitor, with respect to each apartment at SP48462. 12.Helen Jayne Dorothy Davenport is guilty of cartel conduct under Cartel provisiosn [sic] defined in s 45[A]D Consumer and Competition Act 2010 (Cth), against the [applicant/applicant’s entities]. The proceedings arise out of the same essential facts and the parties agreed that the respondents’ interlocutory applications should be heard together.APPLICATION FOR RECUSAL Near the commencement of the hearing, Dr Quach applied for me to recuse myself on the ground of apprehended bias. Dr Quach’s application was put on two bases:·first, that his case has been prejudiced by my “decision not to allow discovery”, which was a reference to the fact that I had refused to grant leave to Dr Quach to issue subpoenas; and·secondly, that I had previously decided a case against Dr Quach, namely Quach v Australian Health Practitioner Regulation Agency (Extension of Time) [2023] FCA 578 (Quach v AHPRA). I declined to recuse myself at the hearing for reasons which would be given in the judgment on the interlocutory applications.Legal principles The criterion to establish apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide: QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; 409 ALR 65 at [37]. The criterion logically entails: (1) identification of the fact which it is said might lead a judge to resolve the question other than on its legal and factual merits; (2) articulation of the logical connection between that fact and the apprehended deviation from deciding that question on its merits; and (3) assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer: QYFM at [38]. Refusal to grant leave to issue subpoenas

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Rule 26.01(1) includes:Summary judgment (1)A party may apply to the Court for an order that judgment be given against another party because:(a)the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or(b)the proceeding is frivolous or vexatious; or(c)no reasonable cause of action is disclosed; or(d) the proceeding is an abuse of the process of the Court; or(e)the respondent has no reasonable prospect of successfully defending the proceeding or part of the proceeding. In his original statement of claim in QUD 16 of 2024, Dr Quach pleaded:Background 1.Mark Phillip McIntyre sold his property management rights business at 39-41 Lawson Street, Byron Bay NSW 2481 (SP48462), to the [applicant], which settled on 29 June 2023. Cartel conduct 2.Mark Phillip McIntyre directly or indirectly installed a new property manager at SP48462.3.The [applicant] claims: i.Compensatory damages. ii.Costsiii.Interests In his original statement of claim in QUD 39 of 2024, Dr Quach pleaded:Background 1.Helen Jayne Dorothy Davenport is an on-site residential property manager at Lennox Head Beachfront Apartments (SP45001), 77-83 Ballina Street Lennox Head NSW 2478.2.The [applicant] purchased the property management rights business at SP48462, 39-41 Lawson Street Byron Bay 2481, which settled on 29 June 2023. Cartel conduct 3.Helen Jayne Dorothy Davenport is directly or indirectly installed by another real estate agent(s) as the property manager for SP48462, 39-41 Lawson Street Byron Bay NSW 2481.4.The [applicant] claims: i. Compensatory damages ii.Costs iii.Interests Both respondents had raised a number of issues with Dr Quach about deficiencies in the statements of claim which he had filed. The Court made orders granting leave to Dr Quach to file and serve amended statements of claim. On 5 April 2024, Dr Quach filed an amended statement of claim in QUD 16 of 2024. The statement of claim was in the following terms: Background 1.Mark Phillip McIntyre (McGolf Pty Ltd) and the installed property manager for SP48462 are competitors in the Byron Bay holiday letting market. 2.Mark Phillip McIntyre sold his property management rights business at 39 – 41 Lawson Street, Byron Bay NSW 2481 (SP48462) and Lot 5 of the SP48462, to the [applicant], which settled on 29 June 2023. 3. The installed property manager for SP48462 does not own any part of the SP48462, which is a breach of the condition under the by-laws of SP48462. Cartel conduct 4.Mark Phillip McIntyre directly or indirectly installed his competitor as the property manager at SP48462. 5.Without any standing in the strata of SP48462, the installed property manager was provided with unrestricted access to SP48468 by Mark Phillip McIntyre, while he restricted access to the [applicant], who owns part of the strata at SP48462.6.Mark Phillip McIntyre, prevented, restricted and limited the capacity (forward bookings) of the business that he sold to the [applicant]. 7.The installed property manager charges higher room rates than Mark Phillip McIntyre with respect to each apartment at SP48462.8. Mark Phillip McIntyre is guilty of cartel conduct under the Cartel provisions defined in s 45AD Consumer And Competition Act 2010 (Cth), against the [applicant/applicant’s] entities.

Ratio Decidendi

Legal Principle Established

McGolf was contracted to provide the onsite services by the Owners Corporation of Strata Plan No 48462 under a “Management Agreement”. Under that agreement, McGolf was required to own and reside in a unit on the property. This was done by Mr McIntyre owning, and residing in, Lot 5 of SP48462. McGolf also carried on a “residential letting business”. McGolf’s activities involved providing residential letting services to persons who owned apartments located within the property and to others. The ability to conduct such a business was provided for in clauses 14.1 to 14.18 of the Management Agreement. In order to carry out the residential letting business, Mr McIntyre held a licence under the Property and Stock Agents Act 2002 (NSW) as a Class 1 Agent – Real Estate – Sales or Leasing and McGolf held a corporation licence under that Act. Both licences have been surrendered and are no longer held. On 3 April 2023:·McGolf and QE Family Pty Ltd as trustee for QE Tai Sing Family Trust executed a contract for the sale and purchase of the management business and the residential letting business (the Business Sale Contract). ·Mr McIntyre and Dr Quach’s wife, Ms Veasna Quach, executed a contract for the sale and purchase of Lot 5. Ms Quach was the sole director of QE Family Pty Ltd. Mr McIntyre stated in his affidavit that the Business Sale Contract was amended by emails between the relevant solicitors on 20 and 21 June 2023 to the effect that the Management Agreement (and the letting agreement in clauses 14.1 to 14.18 in the Management Agreement) were not to be assigned to QE Family Pty Ltd. These emails were not in evidence. According to Mr McIntyre’s affidavit, the amendments arose because the Owners Corporation was not willing to provide its consent to an assignment of the Management Agreement. I do not reach any concluded view about these matters. The contracts settled on 29 June 2023. Mr McIntyre stated in his affidavit that, on about 17 July 2023, he sent an email to each of the lot owners within the rent roll (now owned by QE Family Pty Ltd) to advise owners that Ms Veasna Quach and Dr Michael Quach had bought the management business. He provided Ms Quach and Dr Quach with assistance in relation to the computer systems of the letting business. The evidence included later emails from two owners terminating their letting arrangements with Ms Quach and Dr Quach or QE Family Pty Ltd. As has been mentioned, it would seem that all 11 owners have now terminated arrangements. McGolf continued as manager under the Management Agreement until 1 November 2023, at which point the Management Agreement was terminated by agreement between McGolf and the Owners Corporation. Since 1 November 2023, neither Mr McIntyre nor McGolf has carried on any business in any industry. In his affidavit, Mr McIntyre stated:[22] Since the date of the Settlement, I have not: (a)made any recommendations to any person who owns a lot within the Property as to who that owner should use as a residential letting agent;(b) been a party to any agreement, understanding, partnership, undertaking or venture that involves a person or entity acquiring letting appointments from persons that own lots within the Property;(c) entered into any discussions with any persons regarding the acquisition of letting appointments from persons who own lots within the Property;(d)engaged in any discussions with any persons involved with the Property that is critical or harmful to QE Family Pty Ltd as trustee or its reputation;(e) had any discussions with any persons that are offering competing letting businesses to persons who own lots within the Property;(f) caused for or arranged for a person to become a property manager for the Property; or(g) prevented, restricted or limited the capacity of the QE Family Pty Ltd as trustee (or any other person or entity) to operate a residential letting business.