Sethi v The Owners Strata Plan No 93392 (No 5)

[2023] NSWSC 910

Supreme Court

New South Wales

Medium Neutral Citation:

Sethi v The Owners – Strata Plan No 93392 (No 5) [2023] NSWSC 910

Hearing dates:

1 August 2023

Date of orders:

1 August 2023

Decision date:

01 August 2023

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

(1) Mr Sethi is not to take any step whatsoever in these proceedings, unless and until he complies with order 3 pronounced on 17 July 2023, as amended by me on 1 August 2023, within the time allowed unless he first obtains leave of a judge on application supported by affidavit which application is to be dealt with in Chambers in the absence of the parties.

(2) If the defendant solicitor is of the opinion that Mr Sethi has not complied with the rules in relation to any further pleading he brings forward, the defendant is at liberty on three days' notice to Mr Sethi to apply to the registrar on 6 September 2023 when the matter is next before her for the matter to be referred to the duty judge or another judge of the Court to enable the defendant to re-argue his summary dismissal application.

(3) The applicant pay the defendant’s costs on the ordinary basis.

Catchwords:

CIVIL PROCEDURE — defendant reinvigorated earlier summary dismissal application — plaintiff’s conduct of the proceedings has caused increased costs — reinvigoration of application without prior notice to plaintiff

Legislation Cited:

Uniform Civil Procedure Rules (NSW), rr 14.28, 18.6

Category:

Procedural rulings

Parties:

Akhil Sethi (Plaintiff)
The Owners – Strata Plan No 93392 (Defendant)

Representation:

Counsel:
A Sethi (Plaintiff in person)
L Holland (solicitor) (Defendant)
E Patrick (solicitor) (Mr Cho)

Solicitors:
Eakin McCaffery Cox (Defendant)
Hicksons (Mr Cho)

File Number(s):

2023/137553

Ex Tempore JUDGMENT (revised)

1. Earlier today Ms Holland, who appears for the defendant in these proceedings, made an application under r 18.6 Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) for an order in effect to reinvigorate the application for summary dismissal which I did not accede to on 17 July 2023, preferring as it were the alternative under r 14.28 UCPR. If I may say so, with respect, her submissions were powerful and highly persuasive. However, allowing for the circumstance that Mr Sethi is self-represented, although not lacking in confidence in bringing proceedings, and given that the matter was raised without notice to him, and having regard to the provisions of r 18.6(3) UCPR, I decided that I would not accede to that application today.

2. Amongst the persuasive arguments that Ms Holland made, was the argument that a disproportionate amount of time has been spent on these proceedings because of Mr Sethi's spontaneous taking of steps, which he is not strictly entitled to take under the rules, and taking those steps on multiple occasions. She also relied upon a letter that was written to Mr Sethi after the commencement of these proceedings on 19 May 2023, setting out in some considerable detail the reasons why the summons Mr Sethi had filed and served was inappropriate and contrary to the UCPR. Substantially, the grounds raised in that letter were reflected in the decision I made on 17 July 2023.

3. Since then, as today's proceedings indicate, and we have been sitting for some hours hearing these applications, Mr Sethi has, quite apart from taking steps to set aside my orders of 17 July, which I will put to one side for the moment, he has issued, or attempted to issue, a number of other procedural steps in the proceedings. He told me himself from the Bar table that he has tried to get the matter back before the duty judge on a couple of occasions very recently and all of this of course puts an obligation upon the defendant to respond.

4. Although the defendant is a statutory corporation established under the strata management legislation, as Ms Holland submits, typically, the members of that corporation are ordinary people. It is not a large successful financial or trading company, it is not a trading company at all. Any funds expended on litigation or anything else have to be levied upon the ordinary people who own the apartments that make up the strata scheme, and that puts a disproportionate burden on ordinary people to fund litigation of this type, which I held is misconceived in its conception. I am told that that as much as 40 hours of legal work has been put into this matter since it commenced, and a large part of that has been responsive to steps that Mr Sethi has chosen to take because he conceived that they would promote his interests but without adequate notice at times and always requiring a more or less immediate response from the defendant's lawyers.

5. I am concerned that for that reason the costs that are being run up, as well as the worry that litigation brings to ordinary people, is disproportionate to what should be expected in litigation of this type conducted in an orderly fashion. It seems to me therefore that I should impose some further restrictions on Mr Sethi and that I should give the defendant the opportunity under r 18.6 UCPR to reventilate the summary dismissal application if Mr Sethi fails to comply with the orders I imposed on 17 July, as amended today, including the stay. So for this reason I propose to direct as follows:

1. Mr Sethi is not to take any step whatsoever in these proceedings, unless and until he complies with order 3 pronounced on 17 July 2023, as amended by me on 1 August 2023, within the time allowed unless he first obtains leave of a unless he first obtains leave of a judge on application supported by affidavit which application is to be dealt with in Chambers in the absence of the parties.

2. If the defendant solicitor is of the opinion that Mr Sethi has not complied with the rules in relation to any further pleading he brings forward, the defendant is at liberty on three days' notice to Mr Sethi to apply to the Registrar on 6 September 2023 when the matter is next before her for the matter to be referred to the duty judge or another judge of the Court to enable the defendant to re-argue his summary dismissal application.

6. I have been sitting since about 9.30 this morning, apart from a short delay for technical reasons, considering various procedural applications in these proceedings which have, may I say frankly, been generated in most respects by Mr Sethi taking steps that he was not authorised to take because of the stay I imposed on 17 July 2023. I allowed an exception to that as I formed the view that he was entitled to bring an application to have those orders set aside under r 36.15 but in the event that application was unsuccessful in all respects.

7. The rule in relation to the awarding of costs is well known and it is expressed in the pithy expression, costs follow the event. As each and every event today has fallen in favour of the defendant, it would be unjust for me not to award the defendant the costs of Mr Sethi's various unsuccessful applications.

8. The High Court has made it quite clear in recent times that the consideration of the person who is self-represented is irrelevant to the question of the application of the general rule that costs follow the event, and in the circumstances the only proper exercise of my discretion, given the application made by Ms Holland, is that the plaintiff is to pay the defendant's costs of today on the ordinary basis.

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Decision last updated: 03 August 2023