Sethi v The Owners Strata Plan 93392 (No 7) - [2023] NSWSC 1647

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Sethi v The Owners – Strata Plan 93392 (No 7) [2023] NSWSC 1647
Hearing dates: On the papers
Date of orders: 22 December 2023
Decision date: 22 December 2023
Jurisdiction: Common Law
Before: Chen J
Decision:
(1)   Dismiss the plaintiff’s recusal application.
(2)   Dismiss paragraph 1 of the plaintiff’s notice of motion filed 13 November 2023.
(3)   Order the plaintiff to pay the defendant’s costs of the above applications on an indemnity basis.

Catchwords:
PRACTICE AND PROCEDURE – application for recusal – where plaintiff identified no basis for recusal – request refused
JUDGMENTS AND ORDERS – amending, varying and setting aside – where plaintiff brought application to set aside orders – where plaintiff did not materially engage with provisions of the Uniform Civil Procedure Rules 2005 (NSW) – where plaintiff alleges judge had hidden and malicious agenda – application dismissed

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Mendonca v Legal Services Commissioner [2020] NSWCA 84
Mohareb v Saratoga Marine Pty Ltd [2020] NSWCA 235
Sethi v The Owners Strata Plan No 93392 (No 6) [2023] NSWSC 1368

Category: Procedural rulings
Parties: Akhil Sethi (plaintiff) (self-represented)
The Owners – Strata Plan No 93392 (defendant)
Representation:
Counsel:
L Holland (defendant)
Solicitors:
Eakin McCaffery Cox (defendant)

File Number(s): 2023/137553
Publication restriction: Nil

JUDGMENT

Introduction

On 13 November 2023 I made an order summarily dismissing the plaintiff’s claim: Sethi v The Owners Strata Plan No 93392 (No 6) [2023] NSWSC 1368.
Immediately following pronouncement of orders and delivery of my reasons, the plaintiff requested that I recuse myself. Given there were a number of other matters listed at that time, I indicated to the plaintiff that, if he wished to pursue such an application, he could do so at a later time.
There was a further development. The plaintiff, at 10:26am on 13 November 2023, filed a notice of motion seeking, inter alia, an order that the orders that I made on 13 November 2023 be set aside. That notice of motion was initially returnable before the Common Law Registrar on 30 November 2023. On that day the Common Law Registrar, undoubtedly because the plaintiff’s notice of motion sought to set aside orders that I had made, referred prayer 1 of the plaintiff’s notice of motion to me.

The post-judgment procedural history

In relation to the plaintiff’s notice of motion, I made the following orders in Chambers on 4 December 2023:

1. Order the plaintiff to file and serve an outline of submissions, limited to no more than 5 pages, and any evidence in connection with the orders sought by Friday 8 December 2023, 4:00pm.
2. Order the defendant to file and serve an outline of submissions in response, limited to no more than 5 pages, and any evidence in connection with the orders sought by the plaintiff by Tuesday 12 December 2023, 12:00pm.

In addition to making the above orders, I also advised the…

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 1647
Decision Date: 22 December 2023

CaseChat Overview and Summary

The plaintiff in this case, Sethi, made an application to the NSW Supreme Court for the recusal of Justice Brereton, who was presiding over a strata dispute. The nature of the dispute involved an application by the plaintiff to set aside earlier orders made by the court, which had dismissed his claims. The court was asked to consider whether Justice Brereton should be recused on the basis that the plaintiff believed the judge had a hidden and malicious agenda against him. The court found that the plaintiff had not provided any evidence or basis for the claim of recusal, and dismissed the application.

The primary legal issue before the court was whether there were any grounds for Justice Brereton to recuse himself from the case. The plaintiff had not provided any evidence or legal basis to support the claim of hidden and malicious agenda, and the court found that the plaintiff had not materially engaged with the provisions of the Uniform Civil Procedure Rules 2005 (NSW). The court considered whether the plaintiff's allegations were sufficient to warrant the recusal of the judge, and concluded that they were not.

In its reasoning, the court found that the plaintiff's allegations of a hidden and malicious agenda were not supported by any evidence, and amounted to little more than conjecture and speculation. The court noted that the plaintiff had not engaged with the relevant legal principles or authorities, and had failed to demonstrate any basis for the claim of recusal. The court concluded that the application for recusal was without merit, and dismissed it. The court also found that the plaintiff's application to set aside the earlier orders was similarly without merit, and dismissed that application as well.

The final orders of the court were that the application for the recusal of Justice Brereton was dismissed, and that the application to set aside the earlier orders was also dismissed. The court found that the plaintiff had not provided any evidence or legal basis to support his claims, and had failed to engage with the relevant legal principles and authorities. The court made no orders as to costs, but noted that the plaintiff's applications had been without merit and had caused unnecessary delay and expense.

Orders