Caldar v Daly [2009] FCA 1010

FEDERAL COURT OF AUSTRALIA

Caldar v Daly [2009] FCA 1010

RUSSELL CALDAR, AN OWNER OF STRATA PLAN NO. 3873 v PETER DALY, MASON & BROPHY STRATA MANAGEMENT PTY LTD

NSD 559 of 2009

EDMONDS J

9 SEPTEMBER 2009

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION NSD 559 of 2009

BETWEEN: RUSSELL CALDAR, AN OWNER OF STRATA PLAN NO. 3873

Applicant

AND: PETER DALY, MASON & BROPHY STRATA MANAGEMENT PTY LTD

Respondent

JUDGE: EDMONDS J

DATE OF ORDER: 4 SEPTEMBER 2009

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. Pursuant to O 20 r 5 of the Rules, the application be dismissed as being both frivolous and vexatious as well as being an abuse of the process of the Court. 2. The applicant not be permitted to file any further process concerning the subject matter of the application (other than an application for leave to appeal from these orders) without the leave of a judge of the Court. 3. The applicant pay the respondent's costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION NSD 559 of 2009

BETWEEN: RUSSELL CALDAR, AN OWNER OF STRATA PLAN NO. 3873

Applicant

AND: PETER DALY, MASON & BROPHY STRATA MANAGEMENT PTY LTD

Respondent

JUDGE: EDMONDS J

DATE: 9 SEPTEMBER 2009

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 On 4 September 2009 I heard a motion on notice, dated 27 August 2009 and filed the following day, for the dismissal of the applicant's application, dated and filed 12 June 2009 ('the application'), pursuant to O 20 r 5 of the Federal Court Rules ('the Rules'). The notice of motion referred to O 20 r 4 of the Rules, but on the hearing of the motion it was accepted that this rule was not applicable to proceedings commenced after 30 November 2005 and reliance was instead placed on O 20 r 5. 2 At the conclusion of the hearing I made the following orders: (1) Pursuant to O 20 r 5 of the Rules, the application be dismissed as being both frivolous and vexatious as well as being an abuse of the process of the Court. (2) The applicant not be permitted to file any further process concerning the subject matter of the application (other than an application for leave to appeal from these orders) without the leave of a judge of the Court. (3) The applicant pay the respondent's costs. 3 At the time of making these orders, I indicated that my reasons would shortly follow. 4 While the title to the application, referred to the respondent as 'Peter Daly Mason & Brophy Strata Management Pty Ltd', it is clear from the body of the application that Mr Peter Daly is the only respondent; the company is not a respondent and was only included to better identify the respondent. 5 The body of the application read: Nature of the subject of the Application Unconscionable conduct pursuant to Part VI of the Trades Practices Act (Cth) 1974 and further to Parts IVA, VB and V of the same Act, in that the respondent – 1. did enter into a Strata Schemes Management Agency Agreement Contract with another person to appoint his company strata managing agent to an owners' corporation when he was aware of the fact the person had not been authorised by instrument in writing by a majority resolution at a general meeting of the owners' corporation to enter into that Contract as required by s27(1) and s28(1) of the Strata Schemes Management Act NSW 1996; and 2. did refuse to comply with the provisions contained in s33, s66, s69 and s103 of the Strata Schemes Management Act NSW 1996, and r5, r6 and r7 of the Strata Schemes Management Regulation NSW 2005. Legislative basis of the Court's jurisdiction to hear and grant relief sought s21 and s33ZH of the Federal Court of Australia Act 1976. A. DETAILS OF CLAIM On the grounds stated in the accompanying Affidavit, the Applicant claims: Order 1 The Respondent deliver into the custody of the Registrar of the Federal Court, Sydney, NSW, all the lawful property belonging to the Owners of Strata Plan No. 3873 in the possession of the Respondent which is detailed in the list attached titled "Property of the Owners of Strata Plan No. 3873". Order 2 The Court grant the Owners of Strata Plan No. 3873 leave to take possession, custody and control of all their lawful property which is detailed in the list attached titled "Property of the Owners of Strata Plan No. 3873". Order 3 Damages, costs, restitution and recompense $60,000.00 Order 4 Such further and other orders as the Court thinks just and equitable. B. CLAIM FOR INTERLOCUTORY RELIEF AND the Applicant claims by way of interlocutory relief: 1. An Order, pursuant to s21 of the Federal Court of Australia Act 1976, for a Declaration of Right for the Owners of Strata Plan No. 3873 as drafted in the instrument attached titled "Declaration of Right for the Owners of Strata Plan No. 3873". 6 Insofar as the applicant seeks to invoke the jurisdiction conferred on this Court by the Trade Practices Act 1974 (Cth), his claim of unconscionable conduct is totally flawed. Even if such conduct could be proven, it will only amount to a contravention of s 51AA of the Trade Practices Act if it is engaged in by a corporation in trade or commerce. The applicant argued that, because Mr Peter Daly was the sole shareholder and director of Mason & Brophy Strata Management Pty Ltd, he and Mason & Brophy Strata Management Pty Ltd were one and the same juridical entity. On the evidence before me, there is no basis whatsoever for this contention even if, as the applicant contended, Mr Peter Daly is the sole director and shareholder of Mason & Brophy Strata Management Pty Ltd. 7 Belatedly on the hearing of the motion, the applicant sought leave to add or substitute, it was not clear which, Mason & Brophy Strata Management Pty Ltd as a respondent. I refused leave because, even if I had granted it, the conduct, if it be conduct of Mason & Brophy Strata Management Pty Ltd, complained of in paras 1 and 2 of the application could never constitute unconscionable conduct vis-à-vis the applicant. The applicant was not the contracting party with Mason & Brophy Strata Management Pty Ltd; it was the Owners Corporation – the owners of strata plan 3873. 8 Moreover, even if the applicant were the Owners Corporation, the conduct complained of in paras 1 and 2 of the application could never amount to unconscionable conduct on the part of Mason & Brophy Strata Management Pty Ltd. 9 During the course of the hearing of the motion, I enquired of the applicant why he had not prosecuted his grievance against Mr Peter Daly and his company, Mason & Brophy Strata Management Pty Ltd, through the procedures and remedies available to him under the Strata Schemes Management Act 1996 (NSW), in particular Chapter 5, but received no satisfactory explanation; although there was a suggestion that it would not be effective. Be that as it may, it does not found a basis upon which the applicant can seek to invoke the jurisdiction of this Court to prosecute those grievances. 10 The application must be dismissed. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.