TANG v Tari Group Pty Ltd
[2025] WADC 43
•22 JULY 2025
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: TANG -v- TARI GROUP PTY LTD [2025] WADC 43
CORAM: PRINCIPAL REGISTRAR MCGIVERN
HEARD: 10 JUNE 2025
DELIVERED : 22 JULY 2025
FILE NO/S: CIV 5027 of 2024
BETWEEN: TA-WEI TANG
First Plaintiff
HUANG SHAN-CHUN TANG
Second Plaintiff
AND
TARI GROUP PTY LTD
First Defendant
SONY SINDHE
Second Defendant
KASUN UNDUGODAGE RASANKA WIJAYAMANNA
Third Defendant
Catchwords:
Practice and procedure - Application of unrepresented defendant to strike out or dismiss the writ, alternatively to transfer proceedings to Magistrates Court - Whether primary application properly characterised as being for summary judgment or to strike out indorsement - Principles and approach - Whether District Court lacks jurisdiction - Whether claim is otherwise an abuse of process - Where claim exceeds jurisdictional limit of Magistrates Court - Application dismissed - Turns on own facts
Legislation:
District Court of Western Australia Act 1969 (WA), s 6, s 50, s 51, s 74
Magistrates Court (Civil Proceedings) Act 2004 (WA), s 4, s 6
Rules of the Supreme Court 1971 (WA), O 16 r 1, O 20 r 19
Result:
Application dismissed
Representation:
Counsel:
| First Plaintiff | : | Mr I W Priddis |
| Second Plaintiff | : | Mr I W Priddis |
| First Defendant | : | Mr N Dev |
| Second Defendant | : | In person |
| Third Defendant | : | In person |
Solicitors:
| First Plaintiff | : | Graham & Associates Lawyers |
| Second Plaintiff | : | Graham & Associates Lawyers |
| First Defendant | : | Trinix Lawyers |
| Second Defendant | : | Not applicable |
| Third Defendant | : | Not applicable |
Case(s) referred to in decision(s):
Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127
Central City Pty Ltd v Montevento Holdings Pty Ltd [2011] WASCA 5
Eastern Metropolitan Regional Council v Four Seasons Construction Pty Ltd [2000] WASC 178
Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87
Harlap Nominees Pty Ltd as trustee for The Harlap No 2 Family Trust v Povey [2022] WADC 113
Hume v Goldblaze Nominees Pty Ltd as trustee for Goldblaze Unit Trust [2021] WASCA 177
McGavin v McGavin [2024] WASC 408
Nyoni v Patterson [2012] WASCA 171
Pigozzo v Mineral Resources Ltd [2022] FCA 1116
Pisano v South Metropolitan Health Service [2023] WASCA 80
Re Rules of the Supreme Court 1971 (WA); Ex Parte Gates [2018] WASC 213
Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14
PRINCIPAL REGISTRAR MCGIVERN:
The plaintiffs in this action own commercial premises in Nedlands.
Pursuant to a commercial lease dated 15 September 2022, the plaintiffs leased the premises to Tari Group Pty Ltd (Tari), the first defendant in the action.
The second defendant, Ms Sindhe, and the third defendant, Mr Wijayamanna, are the directors of Tari and are named as guarantor in respect of Tari's obligations under the lease.
The plaintiffs commenced this action by a writ of summons filed on 20 November 2024. A statement of claim was filed on 13 February 2025 and amended on 25 February 2025.
Broadly, the plaintiffs claim against the defendants for monies said to be owed under the lease (which has been terminated).
Ms Sindhe[1] has applied for orders that:
(a)the writ be 'struck out or dismissed in its entirety' on the grounds that it fails to properly invoke the court's jurisdiction and constitutes an abuse of process (primary application); alternatively
(b)the proceedings be transferred to the Magistrates Court (alternative application).
[1] The application is brought by chamber summons filed on 14 March 2025, signed only by Ms Sindhe.
In dealing with the application, I will consider the following issues:
(a)What is the character of the application and what approach should be taken to its determination?
(b)Should the time for making an application be extended?
(c)Does the claim indorsed on the writ 'fail to invoke the court's jurisdiction'?
(d)Does the writ otherwise constitute an abuse of process?
(e)Should the action be transferred to the Magistrates Court?
For the reasons that follow, the application is dismissed.
What is the character of the application and what approach should be taken to its determination?
Approach when litigants are unrepresented
I begin that noting that, since 25 February 2025, each of Ms Sindhe and Mr Wijayamanna is unrepresented.
At the time of the hearing, Tari was represented.[2] Indeed, being a body corporate, Tari may not take any step in the proceedings except by a legal practitioner.[3]
[2] Although Tari's solicitors had, prior to the hearing, by chamber summons filed on 6 June 2025, brought an application to cease acting and to be removed from the record. That application has since been allowed.
[3] Rules of the Supreme Court 1971 (WA) (RSC), O 12 r 1(2). See: Hume v Goldblaze Nominees Pty Ltd as trustee for Goldblaze Unit Trust [2021] WASCA 177; Eastern Metropolitan Regional Council v Four Seasons Construction Pty Ltd [2000] WASC 178.
The strike out application having been brought by Ms Sindhe on her own behalf, Tari (by its legal representatives) did not participate in it.
Therefore, in approaching the application, it is appropriate that I take account of the fact that Ms Sindhe is unrepresented. In that regard, I observe that, while a degree of leniency and flexibility is proper, it remains the case that all litigants, including self‑represented litigants, are bound to comply with the rules of the court, which are designed to enhance the efficiency and economy of litigation and reduce the unnecessary expenditure of private and public resources.[4] In short:
[T]he Court must respect an individual's right to resort to the justice system in person, whilst also ensuring not to penalise an opposing party for seeking representation.[5]
Character of the primary application – what rules and principles apply?
[4] Nyoni v Patterson [2012] WASCA 171 [36].
[5] McGavin v McGavin [2024] WASC 408 (McGavin) [10].
I begin by noting that Ms Sindhe has filed three 'affidavits' in support of the application, respectively made on 11 April 2025, 12 May 2025 and 20 May 2025.[6] As to those documents:
(a)much of their content is in the nature of submissions rather than evidence, and will be dealt with accordingly; and
(b)some of their content goes to matters outside the scope of the application (for example, contentions about the adequacy of the pleadings in the statement of claim), although I will deal with the application on the grounds advanced in the chamber summons itself.
[6] Respectively, the First, Second and Third Sindhe Affidavit; and collectively, the Sindhe Affidavits.
The primary application is articulated in the chamber summons in the following terms:
… the Summons, filed by the Plaintiffs on or about 20 November 2024, be struck out or dismissed in its entirety, on the grounds that it exceeds the Court's jurisdictional threshold through artificial inflation, and constitutes an abuse of process or otherwise fails to properly invoke this Court's jurisdiction[.] (Emphasis omitted.)
That application is advanced on the more specific grounds that:
(a)the amount claimed in the indorsement of claim is 'inflated' to a sum over $75,000 because:
(i)the indorsement 'demands $75,901.96' but the statement of claim (as amended) 'reflect[s] significantly lower sums, indicating the actual dispute is below $75,000'; and
(ii)by 'adding unquantified or unsubstantiated items … the Plaintiffs artificially exceed the $75,000 threshold to remain in the District Court';
(b)the plaintiffs improperly claim a security deposit on top of any arrears, rather than offsetting it;
(c)the plaintiffs commenced the action, 'ignoring or bypassing' alternative dispute resolution by means of a Small Business Development Corporation mediation;
(d)the plaintiffs are estopped from relying on any default because their agent advised the defendants to 'wait' and 'not to seek legal counsel';
(e)the statement of claim was filed late, without the consent of the defendants; and
(f)section 51 of the District Court of Western Australia Act 1969 (WA) (DCA) 'requires matters below $75,000 to be dealt with by the Magistrates Court'.
As noted above, the primary application:
(a)is directed to the writ of summons and not to the statement of claim, and is therefore not an application to strike out a pleading; and
(b)is framed as an application to 'strike out or dismiss' the writ. That descriptor is confusing because it conflates the devices of:
(i)dismissing the whole or part of a claim made in an action, being an application for summary judgment by a defendant, pursuant to RSC O 16 r 1; and
(ii)striking out an indorsement of claim, pursuant to O 20 r 19(1)(d) of the Rules of the Supreme Court 1971 (WA) (RSC).[7]
[7] Except to the extent they are inconsistent with the District Court Rules 2005 (WA) (DCR), the RSC apply to cases in this court: DCR r 6.
For ease of reference, the indorsement of claim is annexed to these reasons.
Summary judgment
Insofar as the primary application may be characterised as an application for summary dismissal of the action, RSC O 16 r 1 relevantly provides that:
(a)a defendant must make any application for summary judgment within 21 days of entering an appearance, or must otherwise have leave of the court;
(b)upon such application, the court may order that judgment be entered for the defendant (with or without costs) if satisfied that:
(i)the action is frivolous or vexatious, that the defendant has a good defence on the merits; or
(ii)the action should be disposed of summarily or without pleadings.
The principles applicable to such an application are well-established, as outlined by the Court of Appeal in Pisano v South Metropolitan Health Service.[8] They include the following:
(a)a party should not ordinarily be denied the opportunity to have their case tried. For that reason, the jurisdiction to grant summary judgment should be reserved for the clearest of cases, where 'the plaintiff's action is so clearly untenable that it could not possibly succeed at a trial in the ordinary way';
(b)a defendant bringing a summary judgment application bears the onus of establishing that there is no serious question to be tried on any cause of action raised by the plaintiff. Under RSC O 16 r 1(2), the defendant is required to file an affidavit verifying the facts upon which the application is based;
(c)a plaintiff may show cause against the application by filing an affidavit in response: RSC O 16 r 2; and
(d)if a defendant's affidavit material establishes a prima facie basis for the summary judgment application, the plaintiff may assume an evidentiary onus to show why summary judgment should not be given. However, the defendant retains the ultimate onus of demonstrating that there is no real question to be tried.
[8] Pisano v South Metropolitan Health Service [2023] WASCA 80 (Pisano) [48] - [52].
I note that both parties have filed affidavit evidence in relation to the application.[9]
Striking out the indorsement of a writ
[9] Ms Sindhe has filed the Sindhe Affidavits; the plaintiffs have filed the affidavit of Susanna White, the 'Commercial Asset Manager responsible for managing the Plaintiff's property', made 26 May 2025 (White Affidavit).
Insofar as the primary application may be characterised as an application to strike out the indorsement of the writ, RSC O 20 r 19 relevantly provides:
(a)any application must be made within 21 days of service of the writ to which the application refers;
(b)no evidence shall be admissible in such an application; and
(c)the court may order the indorsement of a writ, or anything in the indorsement, to be struck out on various grounds, including that it:
(i)discloses no reasonable cause of action; or
(ii)is otherwise an abuse of the process of the court,
and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.
It is clear that, even if the primary application is characterised in this way, it is directed to summarily finalising the case. That is because:
(a)it is advanced on the grounds that the writ:
(i)is indorsed with a claim that fails to properly invoke the jurisdiction of the court; and
(ii)is an abuse of process; and
(b)if an indorsement were to be struck out in its entirety on those grounds, there would be little scope for resulting orders other than that the action be dismissed.
Conclusion as to approach
Taking account of the above, in my view, the application:
(a)is either properly characterised as an application for summary judgment under RSC O 16 r 1; and/or
(b)insofar as the application is also advanced as a strike out application under RSC O 20 r 19(1)(d), it should be approached in a consistent manner to the application for summary judgment.[10]
[10] The exercise of powers to summarily terminate proceedings must always be attended with caution: Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87, 99.
Accordingly:
(a)the application should be approached with 'exceptional caution';[11]
(b)Ms Sindhe will bear a heavy onus in satisfying the court that such an outcome is warranted;[12] and
(c)I should not dismiss the action, or strike out the indorsement in its entirety, unless the grounds of the application are so clearly made out that there is no real question to be tried.[13] This is consistent with the view that a proceeding is not frivolous, and an abuse of process, if there is a triable issue.[14]
[11] Pisano [52].
[12] Pisano [52]; Re Rules of the Supreme Court 1971 (WA); Ex Parte Gates [2018] WASC 213 (Gates) [24], [26].
[13] Pisano [48], [52]. See also: Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14 [24], in the context of an application for summary judgment.
[14] Pigozzo v Mineral Resources Ltd [2022] FCA 1116 [25].
Disposition of the primary application
Should the time for making an application be extended?
Consistent with the affidavit of service filed on 29 November 2024, which is uncontradicted, I find that service of the writ on Ms Sindhe was effected on 27 November 2024. An appearance was entered for all three of the defendants on the same day.
In those circumstances, the time allowed to make an application under either RSC O 16 r 1 or RSC O 20 r 19 was 21 days from 27 November 2024, being by 18 December 2024.[15]
[15] See [18(a)], [21(a)].
Since no extension of time was sought or given, the application has been made almost three months outside of the time allowed.
Noting that:
(a)Ms Sindhe is unrepresented; and
(b)the plaintiffs, who are represented, have not taken issue with the application being made out of time, and have engaged with the substance of it,
I proceed on the basis that the time for making the application is extended to 14 March 2025.
Does the claim 'fail to invoke the court's jurisdiction'?
A foundational plank of the contentions outlined in [15(a)] and [15(f)] is Ms Sindhe's apparent assumption that the Magistrates Court has exclusive jurisdiction to deal with civil claims for damages up to $75,000.[16]
[16] The Magistrates Court has a jurisdictional limit, in relation to a civil claim for a debt or damages, of $75,000: Magistrates Court (Civil Proceedings) Act 2004 (WA), s 4 and s 6.
In this regard, I note that:
(a)this court's civil jurisdiction is conferred by DCA s 50, and relevantly includes the same jurisdiction, powers and authority as the Supreme Court has in relation to disputes 'where the amount, value or damages sought to be recovered is not more than the jurisdictional limit';
(b)the 'jurisdictional limit' is defined in DCA s 6 as being $750,000; and
(c)although Ms Sindhe relies on DCA s 51,[17] that provision deals with verdicts or judgments for amounts over the jurisdictional limit and is not relevant in this context.
[17] See [15(f)].
As appears from those provisions, the court's civil jurisdiction[18] has an upper limit, but no lower threshold.
[18] For civil claims other than those falling within DCA s 50(2) (being claims for death or personal injury).
Accordingly, the application in this regard is misconceived because:
(a)even if I were to accept Ms Sindhe's contentions at [15(a)] (to the effect that the claim indorsed on the writ is inflated and that the 'actual dispute' relates to a lower sum),[19] this court has jurisdiction to deal with actions in which the damages sought are below $75,000; and
(b)while the court may order that an action be transferred to the Magistrates Court if it is, or becomes, within the Magistrates Court's jurisdiction, such order is made in the exercise of a discretion under DCA s 74,[20] and is not compelled by the absence of jurisdiction.
Is the claim otherwise an abuse of process?
[19] As to which, see [36] - [43].
[20] As to which, see [52] - [53].
What amounts to an abuse of process is insusceptible of a formulation comprising closed categories. It extends to all categories of case in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. The notion includes proceedings that are clearly doomed to fail, are plainly unsustainable, or are otherwise frivolous, vexatious or oppressive.[21]
[21] Gates [26], [28] - [29] and the authorities cited therein.
Insofar as the writ is said to constitute an abuse of process because the court lacks jurisdiction to deal with the dispute, that contention is rejected by reason of the conclusion at [32].
I turn, then, to consider whether an abuse of process arises from any of the remaining grounds identified in [15].
'Inflated' and inadequately particularised claim
In summary, Ms Sindhe objects that the relief sought in the indorsement of claim is 'artificially inflated' because, insofar as a liquidated sum is claimed, that sum (stated to be $75,901.96) is:
(a)in excess of any claim for rent in arrears which, in turn, is particularised in the statement of claim in an amount of $38,064.73, and revised in the amended statement of claim to $41,905.57;
(b)inflated by its incorporation of other non‑specified sums that:
(i)include reference to a 'deposit replacement' which claim is not supported by the lease; and
(ii)are not sufficiently particularised (in either the writ or the amended statement of claim);
and
(c)inconsistent with the amount claimed by the plaintiffs in an earlier application for summary judgment.
In response, the plaintiffs contend, in summary, that:
(a)the plaintiffs' claim is not limited to a claim for rent in arrears, and extends to 'damages for loss of rent and outgoings for the remainder of the term until 14 September 2027 (subject to questions of mitigation) as well as make-good costs and other consequential losses';
(b)the amended statement of claim sets out the heads of loss claimed by the plaintiffs, and does not include the 'replacement deposit' as a separate head of loss; and
(c)the plaintiffs' summary judgment application was for part of the claim only,[22] and was withdrawn before being determined.
[22] Consistent with Harlap Nominees Pty Ltd as trustee for The Harlap No 2 Family Trust v Povey [2022] WADC 113.
Insofar as the application is for summary judgment, I have regard to the parties' respective affidavit evidence.
I observe that the question, for the purpose of this application, is not whether the claim is 'inflated' in the sense that the plaintiffs may or may not recover all they have sought in the prayer for relief - rather, it is whether all or any part of that claim is so clearly untenable that it is properly characterised as an abuse of process and summarily dismissed.
In my assessment, Ms Sindhe has not met the threshold requirement of RSC O 16 r 1 of establishing, by her affidavits, a prima facie case that the plaintiffs' claim is untenable or that she has a complete defence to the claim. That is because:
(a)it is broadly uncontentious[23] that:
(i)there was a lease agreement, pursuant to which Tari was the tenant of premises leased by the plaintiffs, and that Ms Sindhe and Mr Wijayamanna were Tari's guarantor; and
(ii)the tenancy ended before the full term of the lease, with rent in arrears;
(b)there is significant dispute between the parties about the proper calculation of any rent in arrears, the construction of the lease agreement (including as to termination and rent due), and about the conduct and representations of various parties in the period leading to Tari's vacation of the premises;
(c)more specifically, in support of her assertion that the claim is inflated, Ms Sindhe makes various arguments about the construction of the lease and makes assertions about matters that she says give rise to an equitable estoppel;[24]
(d)the affidavit evidence and written submissions filed by the plaintiffs contradicts the assertions of fact and law made by Ms Sindhe;
(e)insofar as the objection is to the claim for 'replacement of security deposit', that head of loss has already been withdrawn;[25] and,
(f)as to the remaining heads of loss and quantum of the plaintiffs' claim, there are, in my assessment, factual and legal questions to be tried.
[23] See Defence of the Second Defendant filed 28 February 2025, pars 2.1, 3.3 and 4.
[24] As to the latter, see [15(d)] and [44]-[47].
[25] And, in any event, the withdrawal of a claim does not equate to it being so inherently untenable that it should be summarily dismissed.
Insofar as Ms Sindhe objects to the particularity of the indorsement, I refer to the following observations of the Court of Appeal in Belgravia Nominees Pty Ltd v Lowe Pty Ltd[26] as being instructive:
Order 6 r 1 [RSC] requires that an indorsement be a 'concise statement of the nature of the claim made, and of the relief or remedy required'. … [It] is well established that an indorsement is not a pleading, and O 6 r 1 does not require a plaintiff to plead a cause of action in the sense in which that phrase is used in O 21 r 5. Further, indorsements should not be read narrowly, but generously. What must be identified in an indorsement is the critical events which give rise to the relief claimed, without, of course, descending to the factual particularity appropriate to a statement of claim.
[26] Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127 [10].
The indorsement of claim in this case identifies the lease and its key terms, the breaches alleged against Tari, and the basis upon which a claim is said to arise against the guarantor under the lease.
In my assessment, the indorsement of claim is sufficient to meet the requirements of RSC O 6 r 1 and does not constitute an abuse of process. It should not be struck out for want of particularity.
Estoppel and unfairness
As to [15(d)], Ms Sindhe contends that Ms White, as the plaintiffs' agent, made representations that estop the plaintiffs from asserting certain of their rights under the lease, and make it unfair for the plaintiffs to pursue their claim against the defendants.
The White Affidavit contradicts that evidence.
Neither of the parties' affidavit evidence is so inherently improbable or inconsistent with undisputed contemporaneous documents that it should be summarily rejected.[27]
[27] See, for example, Central City Pty Ltd v Montevento Holdings Pty Ltd [2011] WASCA 5 [49].
The conflict in the parties' affidavit evidence gives rise to a question of fact to be tried. I am not, therefore, satisfied that the asserted conduct, let alone any estoppel said to arise from that conduct, is so clearly made out that the claim constitutes an abuse of process.
Failure to mediate
As to [15(c)], there is no obligation under the Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA) to mediate before commencing proceedings, and Ms Sindhe has not established that any such obligation arises under the terms of the lease itself.
Accordingly, the commencement of proceedings before engaging in a mediation process that was available, but not required, does not amount to an abuse of process.
Date of filing the statement of claim
As to [15(e)], there is no merit to Ms Sindhe's objections in relation to the filing of the statement of claim because:
(a)the time for filing the statement of claim was extended by order of the court[28] to 14 February 2025, and the statement of claim was filed within the time allowed; and
(b)in any event, the date by which the statement of claim was filed has no bearing on the question of whether the writ constitutes an abuse of process.
Conclusion in relation to the primary application
[28] Made on 7 February 2025.
It follows from my findings above - that the court does not lack jurisdiction, and that Ms Sindhe has not otherwise established that the plaintiffs' claim constitutes an abuse of process - that the grounds for the primary application are not made out.
Should the action be transferred to the Magistrates Court?
As to the alternative application, I do not consider the discretion under DCA s 74 to be engaged because:
(a)on its face, the claim exceeds the jurisdictional limit of the Magistrates Court; and
(b)I have found that there is a question to be tried in relation to the quantum of the plaintiffs' case and that no part of the claim should be summarily dismissed, nor the indorsement struck out; and
(c)accordingly, the case is not within (and has not become within) the Magistrates Court's jurisdiction within the meaning of DCA s 74.
Even if the discretion under DCA s 74 were enlivened, I would not exercise it in favour of transferring the action to the Magistrates Court because:
(a)it is clear that the plaintiffs maintain a claim for damages in excess of the jurisdictional limit of the Magistrates Court;
(b)I have found that that claim is not so untenable that any part of it ought to be summarily determined; and
(c)transferring the case to the Magistrates Court would have the effect of summarily determining that damages in excess of the jurisdictional limit of the Magistrates Court could not be recovered.
I find that the grounds for the alternative application are not made out.
Conclusion
The application is dismissed.
I will hear the parties as to the precise terms of the orders that should be made, including as to costs.
ANNEXURE
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
EW
Registrar's Associate
22 JULY 2025
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