Singh v The Owners Strata Plan 11723 - [2013] NSWSC 1595

Supreme Court

New South Wales

Medium Neutral Citation: Singh v The Owners Strata Plan 11723 & Ors [2013] NSWSC 1595
Hearing dates: 12 September 2013
Decision date: 04 November 2013
Jurisdiction: Equity Division
Before: Slattery J
Decision:
Orders made under Vexatious Proceedings Act 2008, s 8 prohibiting the plaintiff from instituting proceedings in New South Wales against the First and Third Defendants and staying existing proceedings against them.

Catchwords: PROCEDURE - Vexatious Proceedings Act 2008, s 8 - whether proceedings the plaintiff
commenced are "vexatious" - whether
proceedings were conducted "frequently"- whether the Court should exercise its discretion to make a s 8 order - whether
any order should be made prohibiting defendant from commencing or conducting proceedings against only certain named potential defendants - whether all existing proceedings the defendant has initiated should be stayed.
Legislation Cited: Bankruptcy Act 1966, s 60(3)
Civil Procedure Act 2005, s 140
Local Court Act 2007, s 30
Uniform Civil Procedure Rules 2006, rr 6.29(a), 36.15, 36.16
Vexatious Proceedings Act 2008, ss 3, 4, 5, 6, 8
Cases Cited: Attorney General v Tareq Altaranesi [2013] NSWSC 63
Attorney General v Chan [2011] NSWSC 1315
Attorney General v Crocker [2010] NSWSC 942
Attorney General v Shaw [2004] WASC 280
Attorney General v Wilson [2010] NSWSC 1008
Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27
Brogden v Attorney General [2001] NZCA 208
Jagjit Singh v Owners Strata Plan No 11723 (No 2) [2012] FCA 900
Jagjit Singh v Owners Strata Plan No. 11723 (No 3) [2012] FCA 1121
Jagjit Singh v Owners Strata Plan No 11723 (No 4) [2012] FCA 1180
Official Trustee in Bankruptcy v Gargan (No. 2) [2009] FCA 398
Pascoe v Liprini [2011] NSWSC 1484
Singh v The Owners - Strata Plan No 11723 [2012] NSWSC 519
Singh v Owners, Strata Plan 11723 & Ors [2013] NSWSC 872
Siteberg v Maples [2010] NSWSC 1344
The Owners Strata Plan No 11723 v Singh & Anor [2012] FMCA 308
Singh v Owners of Strata Plan 11723 [2013] FCCA 506
Singh v Owners, Strata Plan 11723 & Ors [2013] NSWSC 872
Singh v Owners Strata Plan 11723 [2013] FCA 714
Category: Principal judgment
Parties: Plaintiff: Jagjit Singh
First Defendant: The Owners Strata Plan 11723
Second Defendant: Paul Desmond Sweeney
Third Defendant: Terry Grant Van Der Velde
Representation: Counsel:
Solicitors:
Third Defendant: S Quang

File Number(s): 2013/194812
Publication restriction: No.

Judgment

The named plaintiff in these proceedings, Mr Jagjit Singh, was declared bankrupt on 5 April 2012. Mr Singh commenced these proceedings by Summons filed on 26 June 2013. In the Summons he sought relief in relation his bankruptcy and to restrain the sale of two properties by Mr Singh's trustee in bankruptcy, the Third Defendant.

The Summons was dismissed by White J in the Equity Duty list, two days after it was filed, on 28 June 2013: Singh v Owners, Strata Plan 11723 & Ors [2013] NSWSC 872. On its dismissal White J said…

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: [2013] NSWSC 1595
Decision Date: 04 November 2013

CaseChat Overview and Summary

The plaintiff, Singh, commenced proceedings against the defendant, The Owners Strata Plan 11723, under the Vexatious Proceedings Act 2008. The plaintiff sought orders that the proceedings the defendant had initiated against him were vexatious and that the defendant be restrained from commencing or conducting proceedings against certain named parties. The defendant opposed the application, arguing that the proceedings were not vexatious and that no orders should be made. The dispute came before the Supreme Court of New South Wales, which had to determine the nature of the proceedings and whether any orders should be made under the Act.

The court had to decide whether the proceedings were vexatious and whether they were conducted frequently. The court also needed to consider whether it should exercise its discretion to make an order under section 8 of the Act. Further, the court had to determine whether an order should be made prohibiting the defendant from commencing or conducting proceedings against only certain named potential defendants. Lastly, the court had to decide whether all existing proceedings the defendant had initiated should be stayed.

The court found that the proceedings were vexatious and were conducted frequently. The court exercised its discretion to make an order under section 8 of the Act and ordered that the defendant be restrained from commencing or conducting proceedings against certain named parties. The court held that no order should be made staying all existing proceedings the defendant had initiated. The court noted that the defendant had a right to challenge the plaintiff’s actions in appropriate proceedings, but the defendant had abused that right by initiating numerous proceedings against the plaintiff and others.

The court made an order that the defendant be restrained from commencing or conducting proceedings against certain named parties. The court did not stay all existing proceedings the defendant had initiated. The court held that the defendant had abused the legal process by initiating numerous proceedings against the plaintiff and others, and the order was necessary to prevent further abuse. The court emphasised the importance of the right to challenge actions in appropriate proceedings and the need to prevent the abuse of that right.

Orders