Singh v Carroll

[2023] NSWSC 245

Supreme Court

New South Wales

Medium Neutral Citation:

Singh v Carroll & Ors [2023] NSWSC 245

Hearing dates:

26 October 2022

Date of orders:

23 March 2023

Decision date:

23 March 2023

Jurisdiction:

Common Law

Before:

McNaughton J

Decision:

(1) The Statement of Claim so far as it concerns the Property Claims is summarily dismissed pursuant to r 13.4(1)(c) of the Uniform Civil Procedure Rules 2005 (NSW).

(2) The balance of the Statement of Claim is struck out pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW).

(3) Gurjit Singh is to pay the costs of the Notices of Motion as agreed or assessed.

Catchwords:

CIVIL – notice of motion to summarily dismiss and/or strike out statement of claim – respondent to motion is an undischarged bankrupt – whether respondent has lack of standing due to bankruptcy – whether causes of action correctly put – property claims summarily dismissed as incompetent and an abuse of process – no reasonable cause of action disclosed for emotional distress claim and misfeasance in public office claim – entire statement of claim summarily dismissed or struck out

Legislation Cited:

Bankruptcy Act1966 (Cth) ss 5, 58, 116, 126

Civil Procedure Act 2005 (NSW) s 56

Residential Tenancies Act 2010 (NSW) s 84

Uniform Civil Procedure Rules 2005 (NSW) rr 12.11, 13.4, 14.28

Cases Cited:

Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41

Agius v New South Wales [2001] NSWCA 371

Batistatos v Roads and Traffic Authorityof New South Wales (2006) 226 CLR 256; [2006] HCA 27

Clavel v Savage (No 2) [2014] NSWSC 463

Cox v Journeaux(No 2) (1935) 52 CLR 713; [1935] HCA 48

Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1

Elali(a bankrupt) v Mahrs [2013] NSWSC 1883

Faulkner v Bluett (1981) 52 FLR 115

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69

Giller v Procopets (2008) 24 VR 1; [2008] VSCA 236

Habib v Commonwealth of Australia (No 2) (2009) 175 FCR 350; [2009] FCA 228

Kostov v Amelie Housing (NCAT Appeal) [2019] NSWSC 16

Massalski v The Owners SP 90255 & Ors. [2023] NSWSC 23

Nyoni v Shire of Kellerberrin (2017) 248 FCR 311; [2017] FCAFC 59

Penthouse Publications Ltd v McWilliam (Court of Appeal (NSW), Priestley and Meagher JJA and Wardell AJA, 15 March 1991, unrep)

Samootin v Shea [2010] NSWCA 371

Shaw v State of New South Wales [2012] NSWCA 102

Simmons v New South Wales Trustee and Guardian [2014] NSWCA 405

Singh v Lekhwar [2022] NSWCATAP 158

Thistlethwayte v Gender Estates Pty Ltd (1976) 8 ALR 700

Ugur v AttorneyGeneral for New South Wales [2019] NSWCA 86

Watkins v Secretary of State for the Home Department [2006] 2 AC 395; [2006] UKHL 17

Category:

Principal judgment

Parties:

Dominique Anne Carroll (First Applicant in First Notice of Motion/First Defendant in Statement of Claim)
Daniel Joseph McKinnon (Second Applicant in First Notice of Motion/Second Defendant in Statement of Claim)
Complete Legal Pty Ltd (Third Applicant in First Notice of Motion/Third Defendant in Statement of Claim)
Suzanne Gainsford-Holland (First Applicant in Second Notice of Motion/Sixth Defendant in Statement of Claim)
Gurjit Singh (Respondent to First and Second Notices of Motion/Plaintiff in Statement of Claim)

Representation:

Counsel:
K Boyd (First, Second and Third Applicant in First Notice of Motion)
R Lee (First Applicant in Second Notice of Motion)
Respondent (Self-Represented)

Solicitors:
Moray & Agnew Lawyers (First, Second and Third Applicant in First Notice of Motion)
Crown Solicitors’ Office (First Applicant in Second Notice of Motion)

File Number(s):

2022/82479

JUDGMENT

Introduction

1. There are two Notices of Motion before the Court, both seeking to summarily dismiss and/or strike out a Statement of Claim (“SOC”) filed by the plaintiff, Gurjit Singh trading as Gurjit Singh (“Mr Singh”), on 22 March 2022. Mr Singh is a bankrupt who is self-represented in these proceedings.

2. The SOC seeks various relief against six defendants. The dispute relates to a property in which Mr Singh was living in Kingswood (with another person not party to these proceedings) (“the Kingswood property”). The defendants can be grouped as follows:

1. The first to third defendants (also first to third applicants in the first Notice of Motion: Dominique Anne Carroll (“the First Applicant”), Daniel Joseph McKinnon (“the Second Applicant”) and Complete Legal & Conveyancing (“the Third Applicant”)) are, respectively, a solicitor, director, and the business name of Complete Law Pty Limited, namely Complete Legal and Conveyancing (“Complete Legal”). The first to third applicants will be referred to as the “Complete Legal Applicants”.

2. The fourth and fifth defendants, Mr and Mrs Lekhawar, are owners of the Kingswood property (“the Landlords”). The Landlords are not represented and have not taken any active steps in this proceeding. This lack of active participation has no ramifications for my determination of this matter.

3. The sixth defendant (the first applicant in a separate Notice of Motion to that of the Complete Legal Applicants), Ms Suzanne Gainsford-Holland, is a Deputy Registrar of the NSW Civil and Administrative Tribunal (NCAT) (“the Deputy Registrar”).

3. On 27 May 2022, the Complete Legal Applicants filed a joint Notice of Motion seeking orders that Mr Singh’s (the respondent) claims for relief be summarily dismissed and/or struck out. On 27 May 2022, the Deputy Registrar also filed a Notice of Motion seeking similar orders.

4. The hearing in relation to the Notices of Motion took place before me on 26 October 2022.

5. Ms K Boyd of counsel represented the Complete Legal Applicants and Mr R Lee of counsel represented the Deputy Registrar. Mr Singh was self-represented.

6. For the reasons set out below, I have determined that the claims, referred to below as the Property Claims, should be summarily dismissed on the basis they are incompetent and thus an abuse of process because of Mr Singh’s bankruptcy pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”); and further that the claims, referred to below as the Emotional Distress and the Misfeasance in Public Office claims, should be struck out, pursuant to r 14.28 of the UCPR.

7. I note that the overriding purpose of the Civil Procedure Act 2005 (NSW) and the UCPR is to facilitate the just, quick and cheap resolution of the real issues in the proceedings (s 56) and I have endeavoured to prepare my reasons with this principle in mind.

Background

8. In order to view these applications in context, it is convenient to briefly set out the background of the matter.

9. On 6 May 2021, the respondent was declared bankrupt.

10. The Landlords own the Kingswood property. Mr Singh and a co-tenant, who is not involved in these proceedings, leased the Kingswood property from the Landlords. I note for completeness that Mr Singh has claimed in other proceedings that there was no residential tenancy agreement between the parties.

11. On 26 July 2021, the Landlords brought an application to NCAT for orders for possession of the Kingswood property pursuant to the Residential Tenancies Act 2010 (NSW).

12. On 9 November 2021, NCAT Senior Member Charles, sitting in the Consumer and Commercial Division, made orders including the following:

“2. By consent, the Residential Tenancy Agreement is terminated in accordance with:

- s 84 of the Residential Tenancies Act 2010, as the landlord has served a termination notice for termination at the end of the fixed term.

3. By consent, the Residential Tenancy Agreement is terminated immediately, and possession is to be given to the landlord on the date of termination.

4. By consent, the order for possession is suspended until 30-Nov-2021

5. By consent, the tenant shall pay the landlord a daily occupation fee at the rate of $57.14 per day from the day after the date of termination, namely 10-Nov-2021 until the date vacant possession is given to the landlord.

6. By consent, within 60 days of the date for possession of the premises specified in these orders the landlord may request the relisting of the application to determine the amount of the occupation fee owing."

13. Mr Singh and his co-tenant appealed the decision of Senior Member Charles to the NCAT Appeals Panel on the ground that they had not consented to those orders.

14. Around February 2022, Complete Legal began to act for the Landlords in a number of proceedings against Mr Singh, including the NCAT proceedings.

15. On 14 March 2022, the Landlords executed a Garnishee Order obtained in relation to the respondent’s rental arrears. Partial satisfaction of the order in the amount of $247.34 was secured.

16. On 4 April 2022, Complete Legal ceased acting for the Landlords.

17. On 16 May 2022, Principal Member Suthers and Senior Member Durack SC sitting as the NCAT Appeals Panel delivered judgment. ^[1] The panel allowed the appeal “[a]s a result of the Tribunal’s inadvertent error based on [the respondent’s] undisclosed bankruptcy”. The proceedings were remitted to NCAT insofar as the proceedings sought orders in relation to possession of the Kingswood property, and the respondent’s trustee in bankruptcy was made a party to the proceedings.

    1. Singh v Lekhwar [2022] NSWCATAP 158.

The Statement of Claim

18. On 22 March 2022, Mr Singh filed the SOC. At the time Mr Singh commenced this action he remained an undischarged bankrupt.

19. By way of summary, the SOC claims the following against the Complete Legal Applicants and the Landlords. It can be noted that the basis for the claims is difficult to discern but note the following:

1. Civil conspiracy: The apparent basis for this claim being the assertion that the Complete Legal Applicants and the Landlords “conspired to achieve the common goal of securing vacant possession [of the Kingswood property] by way of threat or any way they can get it.”

2. Collateral abuse of process: The apparent basis for this claim being the allegation that the First Applicant had no legal basis to seek orders from NCAT for possession of the Kingswood property on behalf of the Landlords.

3. Constructive fraud: The apparent basis for this claim being an allegation that the Second Applicant did not respond to an email from Mr Singh about his objection to the Garnishee Order.

4. Unlawful interference in a contractual right to possession of the Kingswood property: The basis for this claim is difficult to discern other than the general contention that can be gleaned from all Mr Singh has done to date that he apparently feels it is unfair and/or unlawful that he is subject to orders effectively bringing to an end his ability to stay in the Kingswood property.

5. Intentional infliction of emotional distress: The apparent basis for this claim being that the First Applicant phoned Mr Singh to advise that she would seek a warrant for possession of the Kingswood property if vacant possession was not given and that the purpose of that call was to “instill [sic] fear in [the respondent], [threatening] forced eviction and to have no documentary record of the threat.”

20. Claims numbered above as (1) – (4) are conveniently referred to as the “Property Claims” and the claim numbered (5) above is referred to as the “Emotional Distress Claim”.

21. The SOC also claims that the Deputy Registrar committed misfeasance in public office and unlawful interference with contractual relations. It is not immediately apparent what underpins these claims. The most that can be gleaned from the SOC is the claim that the Deputy Registrar:

1. Ignored Mr Singh’s email that it is unlawful for her to grant leave to [the first defendant to the SOC (the First Applicant in these proceedings)];

2. Confirmed that the orders made by Senior Member Charles were final orders;

3. Will issue warrants for possession if Mr Singh does not apply for a stay; and

4. Was “recklessly indifferent to whether her act of deciding finality of the decision of Senior Member Charles was beyond power AND…recklessly indifferent to the likelihood of harm being caused to [Mr Singh].”

22. To the extent that the claims against the Deputy Registrar involve the unlawful interference in a contractual right to possession, it can be conveniently grouped with the Property Claims above. So far as Mr Singh alleges the Deputy Registrar committed misfeasance in public office, that will be dealt with separately below.

23. The relief sought by the SOC is as follows:

“1. Garnishee Order 2022/00039644 be set aside

2. A declaration that [the Second Applicant] is not fit and proper person to practice law.

3. A declaration that Defendant 1-6 are Jointly and Severally Liable for any amount awarded in general damages, aggravated damages, exemplary damages for the economic and non-economic loss for any cause of action pleaded and arise at trial.

4. In the alternative, Defendant 1-5 are Jointly and Severally liable for any amount awarded in general damages, aggravated damages, exemplary damages for the economic and non-economic loss for any cause of action pursued against defendant 1-5 and any cause of action arise at trial

5. Whether Orders made by [Senior Member Charles] on 9 Nov 2021 in RT 2021/32134 are final orders?

6. [Mr Singh] seek[s] general damages, aggravated damages, exemplary damages for the economic and non-economic loss

7. A declaration that [the First Applicant] is not fit and proper person to practice law.

8. A declaration that [the Second Applicant] and [the Third Applicant] failed in their statutory obligation to have required level of supervision on [the First Applicant]

9. Any other order [the] court deems fit which is in accordance with rule of law.”

The Notices of Motion

24. On 27 May 2022, the Complete Legal Applicants filed a joint Notice of Motion seeking the following orders:

1. The claims for relief in the SOC filed 22 March 2022, except the claim for intentional infliction of emotional distress, be summarily dismissed as incompetent and/or pursuant to r 13.4 of the UCPR;

2. The claim in the SOC for intentional infliction of emotional distress be struck out, pursuant to r 14.28(1)(b) of the UCPR;

3. In the alternative to (1) and (2), the whole of the SOC be struck out, pursuant to r 14.28(1) of the UCPR;

4. Such further or other orders as the Court deems fit to make; and

5. Costs.

25. On 27 May 2022, the Deputy Registrar filed a Notice of Motion seeking similar orders. These were as follows:

1. [Mr Singh’s] SOC filed 22 March 2022 be dismissed pursuant to r 13.4 of the UCPR;

2. In the alternative, the SOC filed 22 March 2022 as against the [Deputy Registrar] be dismissed pursuant to r 13.4 of the UCPR;

3. [Mr Singh’s] SOC filed on 22 March 2022 be struck out pursuant to r 14.28 of the UCPR;

4. In the alternative, the SOC filed 22 March 2022 as against the [Deputy Registrar] be struck out pursuant to r 14.28 of the UCPR;

5. [Mr Singh] pay the costs of this Motion;

6. [Mr Singh] pay the [Deputy Registrar’s] costs of the proceedings;

7. Such further or other order as the Court may deem fit.

The statutory provisions

26. It is convenient to set out the relevant provisions of the UCPR:

13.4   Frivolous and vexatious proceedings

(1)  If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings—

(a)  the proceedings are frivolous or vexatious, or

(b)  no reasonable cause of action is disclosed, or

(c)  the proceedings are an abuse of the process of the court,

the court may order that the proceedings be dismissed generally or in relation to that claim.

(2)  The court may receive evidence on the hearing of an application for an order under subrule (1).

…

14.28   Circumstances in which court may strike out pleadings

(1)  The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading—

(a)  discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or

(b)  has a tendency to cause prejudice, embarrassment or delay in the proceedings, or

(c)  is otherwise an abuse of the process of the court.

(2)  The court may receive evidence on the hearing of an application for an order under subrule (1).

Principles in relation to summary relief

27. Rule 13.4 of the UCPR thus contains the power to grant summary relief. The authorities in relation to summary relief have been recently and conveniently collected by Chen J in Massalski v The Owners SP 90255 & Ors. [2023] NSWSC 23 at [37] – [39]:

“A purpose of r 13.4 is to ‘save the defendant from the cost, delay and vexation in having to defend clearly untenable proceedings’ and to protect ‘the interests of the public in not having scarce judicial resources wasted in dealing with frivolous applications’: Ugur v Attorney-General for NSW [2019] NSWCA 86 at [70] (White JA, Meagher and Brereton JJA agreeing).

The relevant principles that govern summary relief are well-established: Dey v Victorian Railways Commissioners (1949) 78 CLR 62, 84-85; [1949] HCA 1; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, 128-129; [1964] HCA 69 (‘General Steel’). In General Steel, Barwick CJ put the matter thus (at 129):

The test to be applied has been variously expressed; ‘so obviously untenable that it cannot possibly succeed’; ‘manifestly groundless’; ‘so manifestly faulty that it does not admit of argument’; ‘discloses a case which the Court is satisfied cannot succeed’; ‘under no possibility can there be a good cause of action’; ‘be manifest that to allow them’ (the pleadings) ‘to stand would involve useless expense’.

At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or ‘so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument’; ‘so to speak apparent at a glance’.

The Court of Appeal summarised the relevant principles in Simmons v NSW Trustee and Guardian [2014] NSWCA 405 at [196]-[200] (per Gleeson JA, Beazley P and Barrett JA agreeing):

[196] It is not in dispute that ‘great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his cause by the appointed tribunal’: General Steel Industries Inc v Commissioner for Railways (NSW) (General Steel) [1964] HCA 69; 112 CLR 125 at 130 (Barwick CJ).

[197] More recently in Agar v Hyde [2000] HCA 41; 201 CLR 552, Gaudron, McHugh, Gummow and Hayne JJ said at [57]:

‘Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.’

[198] Subsequent authorities have reaffirmed that formulation: see Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; 226 CLR 256 at [46]; Spencer v Commonwealth at [24].

[199] In Shaw v New South Wales [2012] NSWCA 102, Barrett JA (with whom Beazley, McColl, Macfarlan JJA, and McClellan CJ at CL agreed) expressed the test for summary dismissal as follows at [32]:

‘The question is ... whether the claims in question are so obviously untenable or groundless that there is 'a high degree of certainty' that they will fail if allowed to go to trial; and whether this is one of the 'clearest of cases' in which the court may accordingly intervene to prevent the claims being litigated.’

[200] Further, that assessment is to be made taking the plaintiff's case at its highest. The party applying for summary dismissal must accept the truth of all allegations in the statement of claim, and the ranges of meaning which the assertions of fact in the statement of claim are capable of bearing: Penthouse Publications Ltd v McWilliam (Court of Appeal (NSW), Priestley and Meagher JJA and Wardell AJA, 15 March 1991, unrep); Agius v New South Wales [2001] NSWCA 371 at [24].”

The hearing before this Court

28. Both the Complete Legal Applicants and the Deputy Registrar filed affidavits in support of their Notices of Motion. Whilst there was initially some indication of objections by Mr Singh to certain aspects of the affidavits, it was agreed after some discussion that it was appropriate for the Court to read both the affidavits subject to weight.

29. Neither of the deponents were required for cross-examination.

30. Mr Singh neither put on evidence nor written submissions in advance of the hearing despite having ample opportunity to do so. The only materials tendered before me by Mr Singh (at the hearing) was a Notice of Order from NCAT dated 9 November 2021, a Notice of Order from NCAT dated 10 November 2021 and a Summons to the Supreme Court dated 23 May 2022.

31. Mr Singh did, however, make oral submissions in reply to some of the submissions of the moving parties.

32. The threshold issue relied upon by the Complete Legal Applicants was that the Property Claims were incompetent on the basis of Mr Singh’s bankruptcy (as well as being liable to be summarily dismissed under UCPR rr 13.4 and/or 14.28) but that the Emotional Distress Claim may not be rendered incompetent by the bankruptcy (because of s 116(2)(g) of the Bankruptcy Act1966 (Cth)) but in any event that claim should be summarily dismissed pursuant to UCPR rr 13.4 and/or 14.28.

33. Similar submissions were also put on behalf of the Deputy Registrar that Mr Singh’s bankruptcy caused his claims to be incompetent, and in so far as any claim against the Deputy Registrar alleged any loss such as would apparently attract the carve out in s 116(2)(g) of the Bankruptcy Act, there was in fact no relevant loss caused.

The issue of Mr Singh’s bankruptcy

The Complete Legal Applicants’ submissions in relation to Mr Singh’s bankruptcy

34. There is no dispute that Mr Singh is an undischarged bankrupt. The evidence shows that the date of bankruptcy was 6 May 2021.

35. The Complete Legal Applicants contend that by the combined effect of ss 5, 58 and 116(1)(b) of the Bankruptcy Act, the power to commence proceedings is removed from a bankrupt and placed into the hands of their trustee in bankruptcy: Kostov v Amelie Housing (NCAT Appeal) [2019] NSWSC 16 (“Kostov”) at [7] – [14].

36. Relevantly, s 58(1) of the Bankruptcy Act states that the property of the bankrupt vests in the Official Trustee upon the commencement of bankruptcy.

37. Section 5 of the Bankruptcy Act defines property as follows:

real or personal property of every description, whether situate in Australia or elsewhere, and includes any estate, interest or profit, whether present or future, vested or contingent, arising out of or incident to any such real or personal property.

38. The Complete Legal Applicants contend that under s 5, causes of action constitute property for the purposes of the Bankruptcy Act. It was also submitted that a tenant’s interest in the property the subject of the tenancy vests in the trustee in bankruptcy. Therefore, a tenant has no interest in proceedings brought against them for termination of the tenancy and possession of the property and has no standing to be heard in defence of such proceedings or to bring an appeal from orders about these matters: Elali (a bankrupt) v Mahrs [2013] NSWSC 1883 (“Elali”) at [27].

39. Section 116(1)(b) of the Bankruptcy Act provides that divisible property of a bankrupt includes:

the capacity to exercise, and to take proceedings for exercising all such powers in, over or in respect of property as might have been exercised by the bankrupt for his or her own benefit at the commencement of the bankruptcy or at any time after the commencement of the bankruptcy and before his or her discharge.

40. Section 116(2) provides a list of property that is not divisible amongst creditors. Relevantly, s 116(2)(g)(i) provides that s 116(1) does not extend to:

(g) any right of the bankrupt to recover damages or compensation:

(i) for personal injury or wrong done to the bankrupt, the spouse or de facto partner of the bankrupt or a member of the family of the bankrupt […]

41. The Complete Legal Applicants submit that for Mr Singh to maintain a claim for a personal wrong he must establish that the damage is to be estimated by immediate reference to pain felt by him in respect of his mind, body or character and without immediate “reference to [their] rights of property”: Cox v Journeaux (No 2) (1935) 52 CLR 713 at 714; [1935] HCA 48. Further, where the primary and substantial right of action is direct pecuniary loss to the property or estate of the bankrupt, the right to sue passes to the trustee notwithstanding that it may have caused personal inconvenience to the bankrupt: Faulkner v Bluett (1981) 52 FLR 115 at 119. Further, a bankrupt’s pain and suffering allegedly arising from having lost his property through a defendant’s wrongful action is a right that would have also vested in the trustee: Samootin v Shea [2010] NSWCA 371 (“Samootin”) at [81].

42. The Complete Legal Applicants submit that it is incontrovertible that Mr Singh had no standing to bring the Property Claims pleaded in the SOC. The Property Claims do not fall within the exception created by s 116(2)(g) of the Bankruptcy Act as they are not claims for a personal wrong. Rather, the Property Claims arise entirely from Mr Singh’s dissatisfaction with the conduct of the NCAT proceedings in which possession orders over the Kingswood property were sought. It is contended that the Property Claims should be summarily dismissed on the basis that Mr Singh had no standing to commence them.

43. The Complete Legal Applicants also submit that the Emotional Distress Claim may be seen to allege pain and suffering arising from the risk of Mr Singh losing his interest in the Kingswood property and as such, a right to sue based upon property is a right which would also have vested in the trustee: Samootin at [81].

44. However, the Complete Legal Applicants also acknowledge that the Emotional Distress Claim might be argued to be a “personal wrong” and as such, the Court would not have the high degree of certainty required to summarily dismiss the claim on this basis. In any event, the Complete Legal Applicants contend that the Emotional Distress Claim should be struck out as no reasonable cause of action is disclosed on the SOC.

The Deputy Registrar’s submissions in relation to the issue of Mr Singh’s bankruptcy

45. Arguments to a similar effect were put on behalf of the Deputy Registrar, albeit, as noted above, the argument was also put that there is no loss or harm in truth alleged by the SOC against the Deputy Registrar and thus all matters could be summarily dismissed on the basis of Mr Singh’s lack of standing as a bankrupt.

Mr Singh’s submissions in relation to the issue of his bankruptcy

46. Mr Singh contended in oral argument that he was entitled to bring his legal action, and (also) pointed to the authority of Elali, a decision of Slattery J (which I note had also been called in aid (on a slightly different point) by the Complete Legal Applicants). In Elali, the plaintiff (the bankrupt) had leased a house from the defendants pursuant to a lease of 12 months’ duration. The defendants wished to resume possession of their house but the plaintiff contended that he had been given to understand that he was entitled to stay as a tenant in the house for a further 12 months, and sought a declaration to that effect. The defendants sought to strike out the plaintiff’s summons pursuant to rr 13.4 and 12.11 of the UCPR on the basis that he was a bankrupt when he executed the residential tenancy agreement, when he caused the present proceedings to be filed and remained a bankrupt. The plaintiff’s trustee in bankruptcy had been informed of the proceedings but took no part in them, stating that he had not provided consent to the bankrupt to proceed.

47. Relevantly, Slattery J found that the plaintiff was entitled to proceed with his claim based on Thistlethwayte v Gender Estates Pty Ltd (1976) 8 ALR 700 (“Thistlethwayte”) which was authority for the proposition that until an Official Trustee intervenes in litigation brought by a bankrupt in respect of after acquired property, a bankrupt has power to deal with such property and to bring proceedings in respect of it. The plaintiff also relied upon s 126(1) of the Bankruptcy Act which was argued to provide a statutory basis for his submission. Section 126(1) provides:

A transaction by a bankrupt with a person dealing with him or her in good faith and for valuable consideration in respect of property acquired by the bankrupt on or after the day on which he or she became a bankrupt is, if completed before any intervention by the trustee, valid against the trustee, and any estate or interest in that property which, by virtue of this Act, is vested in the trustee shall determine and pass in such manner and to such extent as is necessary for giving effect to the transaction.

48. At [23] of Elali, Slattery J noted that Bowen CJ in Eq had explained (at 703 in Thistlethwayte) that s 126(1) “has two aspects”. In its principal aspect, “it looks to the rights of the person dealing with the bankrupt”, but in its other aspect “it looks to the acquisition of property by the bankrupt after he became bankrupt, and his capacity to transfer a title to [the] property”. Bowen CJ in Eq was required to decide whether a bankrupt was able to bring proceedings for an account in respect of a partnership entered into after he had become a bankrupt, finding “[a]s long as the trustee did not intervene, the bankrupt himself had power to enter into transactions for value with persons dealing with him bona fide in relation to his after-acquired property.”

49. Slattery J held (at [26]) that that principle meant that in the case before him, it was arguable that the plaintiff may have a right to bring proceedings in respect of after acquired property even though title to it is vested in his official trustee by the Bankruptcy Act, s 58(1)(b).

Submissions in reply in relation to the effect of Mr Singh’s bankruptcy

50. Ms Boyd on behalf of the Complete Legal Applicants contended that whilst Elali (together with s 126 of the Bankruptcy Act) did stand for the principle that a bankrupt can maintain proceedings or defend proceedings in respect of a transaction relevantly entered into on or after the day on which they became bankrupt in good faith and for valuable consideration (unless and until the trustee intervenes), that did not assist Mr Singh. Elali involved a case where a tenant sought to bring proceedings on a residential tenancy agreement. That was relevantly the “transaction” entered into after he became bankrupt. In the instant case, there was no such transaction which would meet the terms of s 126 of the Bankruptcy Act that is the subject of the proceedings. Rather, in this case, the particular property here is a chose in action where the claim is in respect of the conduct of individuals related to a different court proceeding. This is not a transaction or a dealing entered into in good faith and for valuable consideration which is what s 126 of the Bankruptcy Act is dealing with.

51. Mr Lee on behalf of the Deputy Registrar joined in the submissions in reply made by Ms Boyd on behalf of the Complete Legal Applicants.

Consideration in relation to the effect of Mr Singh’s bankruptcy

52. I agree with Ms Boyd’s analysis. I am of the view that Mr Singh does not have standing to bring the Property Claims in the SOC because he is a bankrupt. Unlike Mr Elali, Mr Singh’s Property Claims are not based on a transaction as contemplated by s 126(1) of the Bankruptcy Act. Rather, whilst they are claims which have arisen out of problems he perceives in defending a claim for possession of property, they do not arise directly from any transaction. And as noted to be a well-established proposition in Elali at [27], a bankrupt tenant (such as Mr Singh) has no interest in proceedings brought against them for termination of the tenancy and possession of the property and has no standing to be heard in defence of such proceedings or to bring an appeal from orders about these matters. The particular property in question in the case before me is a chose in action where the claim is in respect of the conduct of individuals related to a different court proceeding.

53. I am of the view that the combined effect of ss 5, 58 and 116(1)(b) of the Bankruptcy Act is such that the power to commence proceedings (other than in the limited circumstances referred to in Elali at [29] which do not apply here) is removed from a bankrupt and placed into the hands of their trustee in bankruptcy: Kostov at [11]-[14]; Samootin at [62]-[88].

54. Accordingly, I am of the view that the Property Claims should be summarily dismissed as incompetent and an abuse of process pursuant to r 13.4(1)(c) of the UCPR on the basis that Mr Singh clearly has no standing to bring them as he is a bankrupt. Even though it is likely that the Emotional Distress Claim and the Misfeasance in Public Office Claim can be subsumed within the Property Claims (and therefore disposed of in the same way on the basis of Mr Singh’s bankruptcy because they all allegedly arose from the dealings with the Kingswood property (Samootin at [81])), in case that is not correct, I will deal with them as if they may fall under the carve out under s 116(2)(g) of the Bankruptcy Act. Accordingly, the only matters that remain for my consideration are the Emotional Distress Claim as against the Complete Legal Applicants and the Deputy Registrar, and the Misfeasance in Public Office Claim against the Deputy Registrar.

Emotional Distress Claim

Submissions by the Complete Legal Applicants and Deputy Registrar

55. The Complete Legal Applicants contend that Mr Singh’s fifth claim, that being for emotional distress, is untenable and should be struck out.

56. It is submitted that there is no cause of action known to law for intentional infliction of emotional distress, and despite the fact there may be a recognised cause of action for the tort of intentional infliction of harm (which includes psychiatric injury), Mr Singh’s claim does not disclose this cause of action.

57. Relevant to this claim, the Complete Legal Applicants discern that Mr Singh relies on:­

1. The First Applicant phoning Mr Singh for the purpose of instilling fear into him (SOC [18]-[19]);

2. The only purpose of the Landlords seeking, via the Complete Legal Applicants, a warrant for possession was to secure possession by threat and fear (SOC [38]);

3. “The fear of unlawful eviction is real ever since [Senior Member Charles] asked this question if me and my wife can vacate the premises in an orderly way. And subsequently confirmation by [the Deputy Registrar] that orders of [Senior Member Charles] are final orders. And then [the First Applicant] collateral abuse of process with threatened eviction.” (SOC [40]); and

4. “As a result of her decision, [Mr Singh] and his family members have suffered huge emotional distress which is medically diagnosable and significant to require medical treatment.” (SOC [41]).

58. The Complete Legal Applicants contend that Mr Singh’s claim that he has suffered “huge emotional distress” is insufficient to establish this cause of action.

59. In addition, it is submitted that the alleged emotional distress was caused by the Deputy Registrar and does not disclose any cause of action against the Complete Legal Applicants.

60. The Deputy Registrar also submit that the pleadings in the SOC cannot satisfy the element of loss or harm and set out facts in support of that contention.

61. Mr Singh did not address this issue in his oral submissions.

62. In my view, for the following reasons, the Emotional Distress Claims in the SOC disclose no reasonable cause of action and should be struck out pursuant to r 14.28 of the UCPR.

63. As discussed by Rothman J in Clavel v Savage (No 2) [2014] NSWSC 463 at [11] (see also Habib v Commonwealth of Australia (No 2) (2009) 175 FCR 350; [2009] FCA 228 at [21]-[28]; and Giller v Procopets (2008) 24 VR 1; [2008] VSCA 236 at [164]-[166], [471]-[477]), whilst there may be a tort of intentional infliction of harm, including psychiatric injury, there are certain elements which must be proved. As his Honour stated:

“In the earlier judgment at [36] I upheld the view that there is currently in Australia a tort of intentional infliction of harm, including psychiatric injury, the elements of which are:

(i) A deliberate act (hereinafter, ‘the conduct’) by the putative tortfeasors;

(ii) An intention (including reckless indifference) to cause physical or psychiatric harm by the conduct;

(iii) The occasioning of harm (including psychiatric injury, but not mere distress) as a result of the conduct;

(iv) The harm being caused to a person to whom harm is intended (or a person in the immediate vicinity to whose harm the perpetrator is recklessly indifferent);

(v) In circumstances where the conduct was reasonably likely to cause harm in a normal person;

(vi) The putative tortfeasor has engaged in the conduct without justification or lawful excuse.”

64. Mr Singh’s pleading of having “suffered huge emotional distress” is not sufficient to constitute an actionable claim in accordance with recognised principles. In addition, it is not apparent from the pleadings how it is contended that the conduct taken by any of the applicants which was said to have caused any such distress has been engaged in “without justification or lawful excuse”, but rather from the applicants simply performing their lawful roles.

65. I am of the view that the Emotional Distress Claims should be struck out, pursuant to r 14.28(1)(b) of the UCPR.

Misfeasance in Public Office Claim against the Deputy Registrar

66. The remaining claim is that made against the Deputy Registrar of misfeasance in public office.

67. The Deputy Registrar makes a number of submissions in relation to this claim and why it should be summarily dismissed or struck out, including that Mr Singh has failed to plead a recognised psychiatric injury and that mere distress is insufficient.

68. The Deputy Registrar points to the elements of the tort of misfeasance in public office. They are conveniently summarised in Nyoni v Shire of Kellerberrin (2017) 248 FCR 311; [2017] FCAFC 59 at [97] (North and Rares JJ):

“The elements of the tort of misfeasance in public office have been crafted carefully to ensure that they do not encompass the negligent or unintentional acts or omissions of a public official. The tort requires, first, a misuse of an office or power, secondly, the intentional element that the officer did so either with the intention of harming a person or class of persons or knowing that he, she or it was acting in excess of his, her or its power, and, thirdly, that the plaintiff (or applicant) suffered special damage or, to use Lord Bingham’s more modern characterisation, ‘material damage’ such as financial loss, physical or mental injury, including recognised psychiatric injury (but not merely distress, injured feelings, indignation or annoyance): see [Watkins v Secretary of State for the Home Department [2006] 2 AC 395] at 403 [7], 410 [27].”

(Emphasis in original.)

69. I accept the argument made by the Deputy Registrar that Mr Singh has failed to plead a recognised psychiatric injury and that mere distress is insufficient.

70. Given this determination is sufficient to dispose of the issue, it is not necessary to deal with the other arguments raised by the Deputy Registrar (including judicial immunity – which on its face also appears to be a compelling answer to the claim) in finding an appropriate basis to strike out Mr Singh’s claim in relation to this issue.

Conclusion

71. So far as the SOC concerns the Property Claims, given Mr Singh is a bankrupt, by the combined effect of ss 5, 58 and 116(1)(b) of the Bankruptcy Act he has no standing to bring them. Accordingly, they should be summarily dismissed pursuant to r 13.4(1)(c) of the UCPR as an abuse of process before the Court.

71. So far as the remaining part of the SOC which concern the Emotional Distress Claim, and the Misfeasance in Public Office Claim, no reasonable cause of action is disclosed, and thus the pleadings which set these out should be struck out pursuant to r 14.28 of the UCPR.

72. My findings are such as to result in the entirety of the SOC being either summarily dismissed or struck out.

73. As the entirety of the SOC has been either summarily dismissed or struck out, Mr Singh should pay the costs of the Complete Legal Applicants and the Deputy Registrar.

Orders

75. Accordingly, I make the following orders:

1. The Statement of Claim so far as it concerns the Property Claims is summarily dismissed pursuant to r 13.4(1)(c) of the Uniform Civil Procedure Rules 2005 (NSW).

2. The balance of the Statement of Claim is struck out pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW).

3. Gurjit Singh is to pay the costs of the Notices of Motion as agreed or assessed.

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Endnote

Decision last updated: 23 March 2023