Trieu v Rook Cmit Pty Ltd

[2024] NSWSC 122

Supreme Court

New South Wales

Medium Neutral Citation:

Trieu v ROOK CMIT Pty Ltd [2024] NSWSC 122

Hearing dates:

12 February 2024

Date of orders:

20 February 2024

Decision date:

20 February 2024

Jurisdiction:

Common Law

Before:

Schmidt AJ

Decision:

(1)   Mr Trieu’s motion be dismissed.

(2)   The defendants have leave to file the proposed amended defence.

(3)   Time to file and serve the proposed cross claim is extended until 4pm on 21 February 2024.

(4)   The parties should approach by 4pm on 6 March 2024, either with proposed costs orders which will then be entered, or with short written submissions in the event that there is a dispute about the appropriate costs order.

Catchwords:

CIVIL PROCEDURE – summary judgment – whether summary judgment should be entered in favour of the plaintiff – refused – pleadings – whether leave to amend the defence should be granted – where statement of claim did not particularise claims – where evidence served provided particulars – leave granted – whether an extension of time to file a cross claim should be given – extension granted

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 56, 57(1), 58, 64

Uniform Civil Procedure Rules 2005 (NSW), rr 1.12, 9, 15.1

Cases Cited:

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

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27

FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268; [1988] HCA 13

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

Category:

Procedural rulings

Parties:

Phuoc Trieu (Plaintiff)
ROOK CMIT Pty Ltd (First Defendant)
Robert Rook (Second Defendant)

Representation:

Counsel:
P Tiliakos (Defendants)

Solicitors:
Winterkorn Legal Group (Defendants)

File Number(s):

2023/103713

Publication restriction:

Nil

JUDGMENT

1. Mr Trieu is the registered proprietor of a property at Armidale, where the Tamworth Colonial Inn is located. The Company has leased that property from him for some years under a written lease. There it operates a motel and restaurant. The lease requires Mr Rook to perform the Company’s obligations under the lease. But not only does Mr Trieu allege that every year since 2008 various of them were breached, he also claims that the result of breaches of fundamental terms was substantial damage to his health, financial loss and legal fees he has incurred.

2. In these proceedings Mr Trieu seeks possession of the property, as well as damages, both of which the defendants resist.

3. This judgment deals with two motions, both supported by affidavits. Mr Trieu’s motion seeks summary judgment, which the defendants contend should be dismissed. They seek leave to file an amended defence and an extension of time to file a cross claim. That is also resisted by Mr Trieu.

The parties’ cases and their approach at the hearing

4. The onus falls on the applicants to establish the case they advance on their motions. They each relied on affidavits and various documents.

5. Mr Trieu relied on affidavits he has sworn, as well as his written submissions, contained in the court book, two further written submissions he only provided at the hearing and his oral submissions.

6. Those submissions raise various allegations of the most serious kind against the defendants. They include allegations of tampering with legal documents; abuse of process; false and misleading pleadings and statements to obtain a financial advantage, to pervert the course of justice and defame Mr Trieu; counterfeit emails; forging documents; and making various false claims.

7. Mr Trieu also addressed s 53 of the Real Property Act 1900 (NSW) and various equitable principles, claiming that the defendants have no defence; that which they seek to advance is frivolous; and that the proposed cross claim is also frivolous and/or vexatious. Mr Trieu also contends that a digital forensic report which he had obtained established that an email on which the defendants relied was not genuine and that the defendants had failed to comply with Court orders.

8. By his affidavits, Mr Trieu explained the parties’ considerable litigious history and the case he wants to advance. While objections to them were raised, they were not pressed at this interlocutory stage of the proceedings. In his written submissions, he relied on that history and his understanding of caselaw which he has not identified, but claims he has quoted from, to demonstrate the strength of his case.

9. The defendants relied on the affidavits of their solicitor, Mr Winterkorn, who explained the course the proceedings had taken; as well as the written submissions which, as eventually emerged, they had filed and served late, to which I will return. The defendants’ written submissions were not in the court book, Mr Trieu having refused to read them and objecting to them being received, in circumstances explained at the hearing.

10. The affidavits are not confined to matters raised by the motions, but also deal with matters which the parties each contend support their respective cases. Mr Trieu unsuccessfully objected to some documents exhibited to them, including the proposed amended defence and cross claim. They, of course, had to be received, given that they were the subject of the defence motion.

11. Mr Trieu opposed the leave sought to file the proposed amended defence, as well as an extension of time to file the cross claim, which he considers to be frivolous and vexatious. His case was that it was only after it had been confirmed that the defence was not to be amended that he served his evidence and that it was this which had triggered the defence motion. Had he been on notice of this possibility, he would not have filed his evidence.

12. Mr Trieu’s submissions dealt not only with the alleged breaches of the lease over its course, already dealt with in the defence, but also with a dispute about the renewal of the lease; claims advanced in the defence which Mr Trieu claims are false; affidavits sworn in other proceedings which he claims were also false; claims that an AVO had been falsely obtained against him by a third party; alleged breaches of various of the Uniform Civil Procedure Rules 2005 (NSW); and other claimed wrongdoing which he considers help establish the strength of his case.

13. Mr Trieu also contended that the defendants had failed to comply with various of the Court’s orders, including for the filing and service of various documents, including their written submissions about the motions, which had been filed and served late. The result, he explained, was that he had not read those submissions, which he had instead deleted, and had also not included them in the court book.

14. When it was explained to him that this was not a matter for him to decide, but for the Court, he was provided with a copy of the submissions and an opportunity to read them during an adjournment, which he refused.

15. Mr Trieu had in court a qualified interpreter, but availed himself but little of his assistance, seemingly unsatisfied with his interpretation. Mr Trieu’s position was that he could not rely on the interpreter to help him understand the submissions. Rather, he would require an adjournment of a week in order to comprehend them. But when I asked counsel if the defendants had any objection to such an adjournment, he interjected and indicated that he wanted to proceed without reading the submissions.

16. That, of course, was a matter for him. The hearing then proceeded.

17. Mr Trieu’s claims are disputed by the defendants. In short, their written submissions deal with the applicable principles, which Mr Trieu did not address in his submissions. They contend that on the evidence, Mr Trieu cannot establish what the applicable law and principles require. It followed that the orders he seeks could not be made and the orders they seek must be made.

18. Mr Trieu, having refused to read the defence submissions, did not address the defence case. That plainly did not assist him in making out his case. This was the regrettable result of him being unrepresented.

19. What the Court has to ensure is that the parties are given a fair opportunity to be heard and that litigation is not conducted by ambush or surprise. The Court cannot ensure, however, that they make good use of the opportunities they are given.

20. Both the parties, their legal representatives and the Court are bound by s 56 of the Civil Procedure Act 2005 (NSW). The Court is thereby required to adhere to the overriding purpose of the Act there specified, to facilitate the just, quick and cheap resolution of the real issues in the proceedings. The parties must help facilitate this. That includes by adhering to the Court’s orders for preparation of a case for hearing and if there is any failure to do so, to raise that for the Court to deal with.

21. If a party does not take a particular step which has been ordered, within the time specified and the other party takes no step to raise the matter, so that the Court can deal with the problem before a hearing, it will inevitably be dealt with at the hearing. The result will not then inevitably be, for example, that evidence or submissions which have been served out of time will not be received at the hearing.

22. That is for the Court to determine, in the circumstances which have arisen to be considered, not for the parties to determine.

23. In this case, both parties sought to rely on documents and submissions served out of time and even at the hearing. There were objections which were then dealt with in the context of what the dictates of justice required. They necessitated consideration of what prejudice had been suffered as the result of the various failures and delays.

24. In Mr Trieu’s case, he submitted at the hearing that he always complied with the Court’s orders and that the defendants did not, with the result that their approach had had adverse consequences for his health. That did not permit the orders which they sought to be made.

25. That submission could not be accepted given that, for example, until the commencement of the hearing, Mr Trieu had not served a report he had obtained about whether he had received an email, which had been referred to in his written submissions. Contrary to his case, service of that document depended on him, not the defendants, even though they had been put on notice of its existence by his submissions.

26. I also concluded that Mr Trieu’s receipt of the defendants’ written submissions two days late, did not entitle him to refuse to read them or to include them in the court book, let alone simply to delete what he had been served electronically. He could certainly object to reliance on them at the hearing, but that raised the question of whether he had suffered any prejudice from these relatively short written submissions having been served a little late.

27. I concluded that this delay can have caused Mr Trieu no real prejudice in all the circumstances and that the defendants could thus not justly be deprived of the opportunity to rely on their written submissions, which addressed the principles the Court had to adhere to, in determining the competing motions.

28. In the case of the defendants, for example, I refused them leave to rely on an affidavit only served the day before the hearing, which dealt with matters already dealt with in other affidavits they had earlier served and were submitted merely to “update” them.

29. This was because I concluded that the matters dealt with in that affidavit, to which a number of documents were exhibited, could and should have been dealt with in those earlier affidavits. That, combined with the lack of notice of the intended reliance on those documents led to the refusal of leave to rely on that affidavit, which I concluded could not justly be given in the circumstances.

Issues

30. There was no issue between the parties about the applicable law or the evidence. It is the fundamental questions raised by the competing motions which remain in issue between them.

31. The two motions have to be considered together, given the competing claims advanced. But because of what they each raise, it is convenient to first explain the conclusions I have reached about the defence motion, which required consideration both of what Mr Trieu’s statement of claim and the current defence pleads.

Should leave to amend the defence be granted?

32. I am satisfied that this leave must be granted, that being what justice requires in the circumstances.

33. The defence case was that the proposed amendments were relatively minor and some respond to newly provided particulars of Mr Trieu’s claim. They were thus necessary for the just determination of the real issues in the proceedings. The grant of the leave sought also accorded with what the dictates of justice required, the proposed amendments being timely and compliant with the applicable requirements of the Act and Rules.

34. Mr Trieu’s objection to the leave sought was essentially that the application had only come to be made after service of his evidence. His submissions explained in great detail his view of the merits of his case, but his views alone about what his evidence will establish cannot provide a just basis for the refusal of leave to amend the defence.

35. The strength of Mr Trieu’s case depends in considerable part on what will plainly turn on conflicts in the evidence he and Mr Rook will each have to give at final hearing. That will raise issues of credit, which will have to be resolved in order to determine whether Mr Trieu has made out his case, the onus falling on him as the plaintiff. That will depend on whether his evidence or that of Mr Rook is preferred.

36. The defence evidence has not yet been filed or served, so it is not possible, at this stage, to come to any conclusions about questions of credit. Despite Mr Trieu’s strongly held views, it is thus not apparent that his evidence will be accepted, or ultimately preferred on relevant disputed matters. That will require an examination of documents received in evidence at the final hearing, as well as a consideration of the oral evidence which Mr Trieu and Mr Rook then give, particularly in cross examination.

37. The defendants’ case was that their application for leave to amend was made after service of Mr Trieu’s evidence because it was only then that they obtained particulars which the Rules required Mr Trieu to have included in his statement of claim, but which he had failed to do. Mr Trieu did not address this and thus this aspect of the defence case was unchallenged.

38. But that accords with the terms of the statement of claim. Many claims are there advanced. They relate to, for example, alleged false statements in affidavits Mr Rook has sworn, causing Mr Trieu damage to his health and financial loss and legal fees, every year since 2008. But the only particulars provided of that claim are specified provisions of the Crimes Act 1900 (NSW), the “ICAC” Act 1988 (NSW) and the Local Government Act 1993 (NSW), and various clauses of the lease.

39. The Rules, however, require that parties give such particulars of all claims or other matters pleaded as are necessary to enable other parties to identify the case that the pleading requires be met: r 15.1. The defendants’ case was thus that it was only in the evidence Mr Trieu served that such particulars were provided. That was what had triggered their application for leave to amend the defence.

40. It is difficult to see why this cannot be accepted, given the terms of the statement of claim and the scheme of the Act and the Rules.

41. When the Court exercises any power given to it by the Act or Rules and when it interprets any of their provisions, it must seek to give effect to the overriding purpose of facilitating the “just, quick and cheap resolution of the real issues in the proceedings”: s 56(1) of the Civil Procedure Act.

42. Section 64 of the Civil Procedure Act empowers the Court to permit documents to be amended at any stage of the proceedings, subject to s 58. In determining such motions, other surrounding provisions of the Act must also be taken into account, including:

1. Section 57(1), which requires that for the purpose of furthering the overriding purpose, the proceedings must be managed having regard to the specified objects of:

(a) the just determination of the proceedings,

(b) the efficient disposal of the business of the court,

(c) the efficient use of available judicial and administrative resources,

(d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties.

2. Section 58(2)(b) permits the Court also to have regard to the following, if considered relevant:

(i) the degree of difficulty or complexity to which the issues in the proceedings give rise,

(ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities,

(iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties,

(iv) the degree to which the respective parties have fulfilled their duties under section 56 (3),

(v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings,

(vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction,

(vii) such other matters as the court considers relevant in the circumstances of the case.

43. There can thus be no question about the Court’s power to grant the leave sought to amend the defence in the circumstances in which the application for leave to amend was made.

44. The Court’s discretion to grant such leave was explained in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27. Speed, efficiency and minimising delay and expense are seen as essential for a just resolution of proceedings. But parties must also have a proper opportunity to plead their case. Limits may therefore be placed upon re-pleading, an order for costs not always providing “sufficient compensation and therefore achieve a just resolution”: at [98]. Even an order for indemnity costs may not always undo the prejudice a party suffers by late amendment: at [99].

45. On the other hand, some amendments which reformulate a defence within the scope of existing factual issues may actually be “necessary” to determine the real issues. That is what s 64 of the Civil Procedure Act deals with.

46. Mr Trieu did not address such matters. There is no issue that the amendment application was triggered by service of his evidence. He not only did not dispute this, but complained about it. That, I am satisfied, is not a just basis for refusing the leave the defendants seek, given the way his statement of claim is pleaded.

47. Further, it is not unusual for service of evidence to trigger such an application. Especially when, as here, required particulars have not been pleaded in a statement of claim, as the Rules require.

48. That Mr Trieu will suffer any prejudice as the result of the grant of that leave has also not been established. The mere need to meet the amended defence cannot establish such prejudice. Further, if Mr Trieu wishes to advance the serious allegations he has raised in his submissions, he will have the opportunity to file a reply, particularising what he relies on and addressing those matters in further evidence he wishes to rely on.

49. In all those circumstances, I am satisfied that the leave sought must be given.

Should the extension of time sought also be granted?

50. The proposed cross claim seeks declaratory relief about the exercise of an option to renew a lease. In the alternative, relief against forfeiture or damage is sought.

50. The defendants contend that in all the circumstances which have brought the parties to Court and have resulted in the extension they seek, the Court would exercise its discretion to grant that extension. That being what justice requires, given the service of evidence which has now provided the particulars of Mr Trieu’s claim, earlier discussed, for the first time.

51. They also contend that the facts and arguments on which the proposed cross claim would be advanced have already been raised by its defence, so that practically, Mr Trieu would suffer no prejudice by the grant of the leave sought.

52. Mr Trieu also did not address these submissions. His case largely rested on the defendants’ failure to file and serve the cross claim within the time required by the Rules, after service of his evidence.

53. I have been persuaded that in all the circumstances I have discussed, justice does require that an extension of time to file the proposed cross claim should be granted, even though that will mean that the preparation of the matter for hearing will have to be revisited.

54. That is because the result of the grant of that leave is likely to be that all of the real issues lying between these parties can be dealt with in the one set of proceedings, depending as they plainly do on much the same evidence.

55. The time for filing a cross claim is 28 days after service of a statement of claim. But there is no suggestion in the Rules that the Court does not have the discretion to permit a cross claim to be filed out of time: rr 1.12 and 9.1. The power to extend time is a remedial “power to relieve against injustice”, which must be exercised with caution, in the particular circumstances which arise for consideration: FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268 at 283-284; [1988] HCA 13.

56. Given what is in issue about Mr Trieu’s claims and the very serious allegations which he pursues against the defendants, I am satisfied that justice requires that the power should be exercised.

57. The Act and Rules contemplate that such an application can be made and granted in the circumstances which have here arisen. The Court must act in accordance with the provisions of the Act earlier explained and if the dictates of justice require it, must grant the extension sought.

58. In all the circumstances I have discussed, I am satisfied that the dictates of justice do require that the extension be granted. The defendants must be permitted to pursue the claims they only came to believe they had to pursue, after service of Mr Trieu’s evidence, given the way in which he had pleaded his statement of claim and what the evidence he served conveyed to the defendants.

Can summary judgment be given?

60. These conclusions and the way the statement of claim is pleaded, have also driven my conclusion that justice does not permit summary judgment to be entered in favour of Mr Trieu.

61. Mr Trieu’s case rests on his belief that his case is overwhelming. The defendants dispute this. The resolution of what is put in issue by the statement of claim and amended defence depends not only on the claims respectively advanced, but also on the evidence which the parties are likely to lead to advance their cases at final hearing. There yet being no defence to the cross claim, what will be in issue as to it, is not yet apparent.

62. The defence case is that summary judgment cannot be given, that depending as it does on Mr Trieu establishing that the defendants had no reasonable defence to his many serious claims, as the test discussed in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 requires. It has been applied in many later cases, but was also not addressed by Mr Trieu.

63. What he first had to establish, before the defendants could be deprived of an opportunity to defend his case in the usual way at a hearing, are matters such as that they have no real defence; or that it is manifestly groundless; or so untenable that it cannot succeed; or would involve useless expense. This satisfaction can only be arrived at in the clearest of cases, which Mr Trieu did not attempt to establish that this case was.

64. What is required on a summary judgment application is that the Court has a high degree of certainty about the ultimate outcome of the proceedings: Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 at [57]. That certainty is not here available.

65. Extensive evidence has been received on these motions. But, given all of the claims Mr Trieu advances, the way in which he has pleaded his statement of claim and the very serious allegations he raised in his submissions to support his claims, I cannot conclude that this is the clearest of cases in which summary judgment can justly be entered. Rather, I consider that the defendants cannot justly be deprived of the usual opportunity defendants are entitled to, namely, to defend Mr Trieu’s claims.

66. Further, given all that Mr Trieu has advanced, I am of the view that even if he had addressed the applicable principles, I could not have reached the necessary high degree of certainty about the ultimate outcome of these proceedings. That is because of what I have already explained about credit issues which appear to require the Court’s determination.

67. In the result, I have concluded that the orders Mr Trieu seeks must be refused.

Costs

68. The usual order under the Rules is that costs, as agreed or assessed, must be born by the losing party. In this case that is Mr Trieu.

69. The parties should discuss costs and approach to be heard within 14 days, if there is any dispute about them. If there is, they should also provide short written submissions about what is in issue between them. If there is not, they should file the proposed orders which are agreed, which will then be entered.

Orders

70. For the reasons given I order that:

1. Mr Trieu’s motion be dismissed.

2. The defendants have leave to file the proposed amended defence.

3. Time to file and serve the proposed cross claim is extended until 4pm on 21 February 2024.

4. The parties should approach by 4pm on 6 March 2024, either with proposed costs orders which will then be entered, or with short written submissions in the event that there is a dispute about the appropriate costs order.

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Decision last updated: 20 February 2024