Qasim v Owners Strata Plan 61034 (No. 3) [2023] NSWSC 61

Supreme Court New South Wales

Medium Neutral Citation: Qasim v Owners Strata Plan 61034 (No. 3) [2023] NSWSC 61 Hearing dates: On the papers Date of orders: 08 February 2023 Decision date: 08 February 2023 Jurisdiction: Common Law Before: Lonergan J Decision: The plaintiff is to pay the defendant's costs of the proceedings on an indemnity basis Catchwords: COSTS – misguided appeal with no prospects of success – plaintiff failure to comply with orders regarding service of evidence – incomprehensible affidavits – appeal commenced against multiple named defendants who were not relevant to the appeal – court's time wasted Legislation Cited: Civil Procedure Act 2005 (NSW), s 98 Cases Cited: Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd (No 2) [2009] NSWCA 12 Hamod v State of NSW [2002] FCAFC 97 Oshlack v Richmond River Council (1998) 193 CLR 72 Qasim v Owners Strata Plan 61034 (No. 2) [2022] NSWSC 1610 Category: Procedural rulings Parties: Shaheen Qasim (Plaintiff) Owners Strata Plan 61034 (Defendant) Representation: Counsel: M Maconachie (Defendant)

Solicitors: Shaheen Qasim (Self-represented) Maher Legal (Defendant) File Number(s): 2021/00136133 Publication restriction: Nil

Judgment 1. On 28 November 2022 I gave judgment refusing leave to the plaintiff to appeal the decision of Darcy LCM, ordering that the plaintiff pay the defendant's costs of the proceedings and that any application for indemnity costs should be made in writing: Qasim v Owners Strata Plan 61034 (No. 2) [2022] NSWSC 1610. 2. An application for indemnity costs has been made by the defendant. Written submissions of counsel dated 2 December 2022 argued that the appeal should never have been brought as it had no merit, the plaintiff never disclosed any basis she had for defending the initial claim (for unpaid strata levies) in this Court or anywhere else, that the plaintiff did not file documents required by the Court so that the appeal could progress, when she did provide affidavits or submissions they were incomprehensible and largely irrelevant, and that the plaintiff refused to consent to the joinder of the proper defendant, despite that defendant assisting the Court by identifying itself as the proper defendant and agreeing to defend the appeal so that the Court could deal with the matter to finality. 3. The plaintiff provided written submissions in response which claimed, to the extent that they could be understood at all, that the defendant's solicitor should personally pay her costs based on a series of unfounded, irrelevant and confused allegations about his professional conduct in relation to this (and other) matters. 4. The submissions do not address at all the matters raised in the submissions of counsel for the defendant, nor do they point to any basis upon which indemnity costs should not be ordered to be paid by the plaintiff. Indeed, the submissions tend to illustrate the abuse of the processes of the Court engaged in by the plaintiff and her obdurate and misguided approach to this litigation. They are rejected. 5. Section 98 of the Civil Procedure Act 2005 (NSW) provides that the Court has full power to determine by whom, to whom and to what extent costs are to be paid and the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis. Indemnity costs may be appropriate where, as in this case, there has been "some relevant delinquency on the part of the unsuccessful party": Oshlack v Richmond River Council (1998) 193 CLR 72 at [44]. An award of indemnity costs remains compensatory and not punitive: Hamod v State of NSW [2002] FCAFC 97. 6. A party who commences and continues proceedings which have no prospect of success, such as this one, may be ordered to pay the other party's costs on an indemnity basis: Baulderstone Hornibrook Engineering Pty Ltd v Gordian Runoff Ltd (No 2) [2009] NSWCA 12 at [4] per Allsopp P (with whom Beazley JA as Her Excellency then was and Campbell JA agreed) citing relevant authority in support of that proposition. 7. The proceedings brought by the plaintiff had no prospects of success. They initially misguidedly and in some respects vindictively named the wrong defendants. Orders to file and serve evidence were not complied with. There was obfuscation and irrelevancy in documents that were filed or provided to the Court by the plaintiff. There was nothing on the issues for determination. The Court's and the defendant's lawyers time was wasted by the filing and pursuit of this baseless and hopeless appeal and having to read many pages of irrelevant material put forward by the plaintiff. 8. In the circumstances I order that the plaintiff pay the defendant's costs on an indemnity basis.