Donaldson v Home in Place (Australia) Limited [2024] NSWSC 1321

Supreme Court New South Wales

Medium Neutral Citation: Donaldson v Home in Place (Australia) Limited [2024] NSWSC 1321 Hearing dates: 17 October 2024 Date of orders: 17 October 2024 Decision date: 17 October 2024 Jurisdiction: Common Law Before: Campbell J Decision: (1) Grant leave to the plaintiff to discontinue these proceedings. (2) Dispense with the need for the plaintiff to file a notice of discontinuance. (3) For abundant caution, strike out the proceedings noting that no decision has been made on the merits. (4) I note the undertaking of the defendant not to make an application for costs provided there is no recommencement of these proceedings, without prejudice to Mr Donaldson's rights to issue fresh proceedings in the NSW Civil and Administrative Tribunal. Catchwords: CIVIL PROCEDURE – pleadings – striking out – no reasonable cause of action – tendency to cause prejudice, embarrassment or delay – self-represented litigant – non-compliant pleadings Legislation Cited: Residential Tenancies Act 2010 (NSW) Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28 Category: Principal judgment Parties: Kenneth Allan Donaldson (Plaintiff) Home in Place (Australia) Limited (Defendant) Representation: Counsel: Plaintiff (Self-represented) A Girgis (Defendant)

Solicitors: Hall & Wilcox (Defendant) File Number(s): 2024/277582

EX TEMPORE JUDGMENT (revised) 1. I have before me today in these proceedings, which are at a very early stage, one motion and one matter which is in substance a motion. The first motion is the defendant's motion filed on 27 August 2024 to summarily dismiss the proceedings in accordance with the provisions of r 13.4 Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"). In accordance with the almost invariable practice in this Court, in the alternative, an order striking out the statement of claim under r 14.28 UCPR is sought. 2. Although Mr Donaldson, who is self-represented, referred to it as a "Reply", he by document filed on 2 September 2024 seeks to have the defence struck out. 3. I substantially heard the whole of the applications earlier today. As the luncheon adjournment approached, I discussed with the parties, and in particular Mr Donaldson, a number of things. Most importantly, that Mr Donaldson's statement of claim and his amended statement of claim, with respect to him, by no measure could possibly pass muster under Part 14 UCPR concerned with the legal requirements of pleadings. At a fundamental level, giving every appropriate leeway that may be given to a self-represented person, the document, really, failed in any way to plead material facts at all, and certainly not all of the material facts that would be required to be pleaded to demonstrate an available legal cause of action if those facts were proved on the balance of probabilities at any hearing. 4. Moreover, there were other aspects of the rules which were not complied with, including those relating to the serious matter of raising an allegation of fraud in civil proceedings. 5. During the course of the hearing I was taken through evidence filed by the parties and I hope it is helpful to say that I had formed a provisional view, which I had expressed, that while there may be on the material before me an available underlying cause of action for the recovery of the component of rent referable to a water charge, if, and only if, Mr Donaldson made good his main argument at a hearing, about which I express no opinion one way or the other, I was certainly of the view notwithstanding the material that he sought to rely upon, the general and inchoate allegation of fraud was not available and was not supported by the matters to which he made reference. 6. Had I gone on to determine the matter, I may well have been persuaded that there may have been an underlying case in relation to overpaid rent, but I would not have been persuaded there was an underlying case in relation to fraud in raising those water charges; and I would have summarily dismissed the case in fraud, but I would have allowed Mr Donaldson to re-plead his case in relation to the overpayment of rent and the validity of the water charges. I repeat, in making those observations I say nothing about the prospects of success in relation to over-charging of rent. 7. I should also say that I would have case managed the matter to make sure that any amended pleading brought forward did measure up to the Rules and, if that state of satisfaction had been achieved, I would have remitted the matter to a lower court. 8. I also explained to Mr Donaldson that it was almost inevitable, for reasons which will appear from the transcript, that if the outcome was along the lines that I have just indicated, he would be subject to an adverse order for the costs of the defendant in bringing the application; and to the extent to which any part of it was summarily dismissed, costs in respect of the whole of that matter. 9. I also took it upon myself, without any objection from Mr Girgis of learned counsel, who appears for the defendant, to point out that the type of action that Mr Donaldson wished to propound might be more efficiently, and certainly more cheaply, dealt with in the NSW Civil and Administrative Tribunal, otherwise known as NCAT, which is, it may be said, a tribunal imbued with a great deal of expertise and experience in relation to matters arising under the Residential Tenancies Act 2010 (NSW), which is the area of legal discourse with which any cause of action which may be available to Mr Donaldson is essentially concerned. 10. Over the luncheon adjournment, I invited Mr Donaldson to consider his position, which he did. Upon the resumption of the matter and at ten past two, after I had dealt with another case stood down from this morning, Mr Donaldson informed me, with a certain degree of elaboration, that he felt he had a case in fraud, but he was prepared to discontinue these proceedings and to commence proceedings in NCAT on the basis that there would be no costs payable in this Court. 11. I explained to him that that was not really a matter for me, and I would have to determine any application for costs that the defendant might make in accordance with the established principles which I summarised in the course of my discussion with Mr Donaldson. I will not repeat that summary here. However, Mr Girgis asked for a little time and having taken that time, informed me that if Mr Donaldson was prepared to discontinue the proceedings even on the basis that he intended to recommence in NCAT, the defendant would not seek an order for costs of these proceedings. With respect, that was a very generous stance by the defendant given that costs would follow leave to discontinue as night follows day for the reasons I had explained to Mr Donaldson. 12. I should say, however, that there is no scope for a change of mind, given that Mr Donaldson has informed me that he will take the offer of discontinuing on the basis that the defendant does not ask for costs, it would be a very difficult position indeed for him to have a change of heart and seek to recommence proceedings in this Court rather than NCAT. Again, as night follows day, the defendant would have a remedy in that regard of one type or other. I need not go through the options, as I am sure, in any event, Mr Donaldson having given his options his mature consideration, that contingency will not arise. 13. In the circumstances I make the following orders: 1. Grant leave to the plaintiff to discontinue these proceedings. 2. Dispense with the need for the plaintiff to file a notice of discontinuance. 3. For abundant caution, strike out the proceedings noting that no decision has been made on the merits. 4. I note the undertaking of the defendant not to make an application for costs provided there is no recommencement of these proceedings without prejudice to Mr Donaldson's rights to issue fresh proceedings in the NSW Civil and Administrative Tribunal.