SAT Civil Constructions Pty Ltd v Good Luck Holdings Pty Ltd

[2006] QDC 316

[2006] QDC 316

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No D134 of 2005

SAT CIVIL CONSTRUCTIONS PTY LTD
(ACN 077 817 737)

and

JAN FRANK WEINERT

and

VERONICA ANN COOPER

First Plaintiff

Second Plaintiff

Third Plaintiff

and

GOOD LUCK HOLDINGS PTY LTD
(ACN 100 061 425)
as trustee for THE GOOD LUCK TRUST

and

DAYAL HASSARAM MANSUKHANI

and

POOJA DAYAL MANSUKHANI

and

No 82 of 2005

BLAYNE LEDGER T/A LEDGER COMMERCIAL &
PROPERTY LAWYERS

and

SAM HAMMADIEH

and

GOOD LUCK HOLDINGS PTY LTD (ACN 100 061 425) as trustee for the Good Luck Trust

and

DAYAL HASSARAM MANSUKHANI

and

POOJA DAYAL MANSUKHANI

and

No 115 of 2005

DR THARIM KARAM

And

GOOD LUCK HOLDINGS PTY LTD (ACN 100 161 425) as trustee for The Good Luck Trust

and

DAYAL HASSARAM MANSUKHANI

and

POOJA DAYAL MANSUKHANI

First Defendant

Second Defendant

Third Defendant

First Plaintiff

Second Plaintiff

First Defendant

Second Defendant

Third Defendant

Plaintiff

First Defendant

Second Defendant

Third Defendant

SOUTHPORT

..DATE 28/08/2006

ORDER

Catchwords:
Uniform Civil Procedure Rules 491, 494 - inappropriate to determine without an oral hearing application by a non-party to be added as a defendant.  Defamation claims against defendants had nothing to do with the applicant.  She asserted concern that the outcome may be diminution of the value of her beneficial interest under a trust of which the first defendant (now in liquidation) had been a trustee - on refusal of applications, costs awarded against applicant, not against the defendants

HIS HONOUR:  These three applications in three separate defamation claims deserve the same fate, which is that they should be dismissed.  While I suppose it is not for the Court to discourage litigation, the unusual nature of the claims ought to be noted.  Each seeks damages for defamation to the maximum extent of the Court's monetary jurisdiction against the first defendant company, and two individuals with the surname Mansukhani, who are sued as the "directing mind" of the company, officers and agents of it, and the like.

The alleged defamation was published on a website.  Mr Mansukhani, the second defendant in each proceeding has become very well known to the Courts, in particular the District Court here in Southport.

The affidavits of Mr El-Asswad which have been read and filed by leave today indicate that Mr Mansukhani may be well on the way to being declared a vexatious litigant.  If that happens, it is not likely to have any useful effect for El-Asswad's clients in the present claims, in which Mr Mansukhani is a defendant, sought to be relieved of substantial amounts of his money.  He can not be precluded from presenting a defence in an appropriate way.

The point of the present applications is to join the applicant, who is not presently a party, as fourth respondent, or more correctly, fourth defendant.  She appears to be the daughter of Mr Mansukhani.  Her lengthy affidavit material describes her concern in terms of her being the beneficiary of the trust of which the first defendant was formerly trustee.  It is now in liquidation.  The deponent applicant says that there is no trustee at the moment.  She is fearful that matters will so develop in each of the proceedings that trust assets are lost and the value of the distribution that might eventually be available to her will be reduced accordingly.

She, therefore, seeks the opportunity to participate in proceedings in relation to defamatory publications with which she seems to have had not the slightest concern.  The point she makes is readily understand, but it seems to me is something for her to deal with in some appropriate proceedings, if proceedings prove to be necessary because negotiations fail, calculated to ensure that if there is any defence which can appropriately be mounted, it gets presented.

It seems to me that it would inconvenient in the extreme in litigation generally, and in this litigation in particular, if a person who is a stranger to it is admitted as a party on the basis of some indirect interest which might be affected, depending on how the litigation among the current parties turns out.

I am concerned that the purpose of these applications, whose intent may be divined from the claim in them that "the costs on indemnity basis, or alternatively on standard basis, be paid by the plaintiffs respondents, to Ms Deena Dayal Mansukhani".  That is, on any basis, a highly impertinent request.  The applicant, having no proper status in relation to the claims, seeks to intrude herself into them against the wishes of the plaintiffs (who on ordinary principles should be entitled to decide whom they want to sue) and to saddle them with the costs of her being added.

It cannot possibly be said that the plaintiffs ought to have regarded her at any point as a necessary party.  Indeed, the Court does not do so today, even with the benefit of her affidavit material.  One could be forgiven for suspecting that this is all part of a gambit by one or more of the existing defendants to frustrate the plaintiffs, if possible.

Neither the applicant, nor any of the defendants on the record, has appeared today when called.  Notwithstanding that, the respective plaintiffs, as indicated by file indexes have filed notices requiring an oral hearing as contemplated by Rule 494.

Mr El-Asswad's affidavits indicate service of the "Form 50 notices" on the address of Mr Sharma at Robina, which has been indicated as the address of the applicant for service.  In the application it appears inaccurately as "Rubina - that is R-U-B-I-N-A - Palm Terraces, 12/51 Cotttosole - C-O-T-T-T-O-S-O-L-E - Drive, Rubina, Queensland, 4226", which details have been improved by appropriate correction in the correspondence sent by Mr El-Asswad's firm.

Another matter dealt with today makes one fearful that before long the Court will hear that those Form 50 notices were not received.  Even without that step having been taken, the Court is of the view, as referred to in Rule 491, that the present highly unusual applications ought not to be decided without an oral hearing.

On initial and mature consideration, it seems to me there is no justification whatever for the granting of the relief sought, which would, if granted, only serve to complicate the claims and render pursuit of them much more costly.  I have indicated to Mr El-Asswad misgivings of my own about the practical and commercial wisdom of pursuing such claims, but it may well be that it is the best way of dealing with, and hopefully bringing an end to the publications which have caused concern.  In each case, the application is refused with costs against the applicant.  Mr El-Asswad has failed to persuade me that the defendants may be ordered to pay costs.

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