von Reisner v State of NSW [2010] NSWSC 1356

New South Wales Supreme Court

CITATION : von Reisner v State of NSW [2010] NSWSC 1356

HEARING DATE(S) : 19 November 2010

JUDGMENT DATE : 2 December 2010

JUDGMENT OF : Ball J

DECISION : The proceedings be dismissed with costs.

CATCHWORDS : PROCEDURE – civil – summary disposal – dismissal – whether pleadings disclose reasonable cause of action. PROCEDURE – civil – parties – representative proceedings – whether proceedings should continue as representative proceedings – suitability of representative. PROCEDURE – civil – jurisdiction – whether lower courts or tribunals more appropriate venues for proceeding

Consumer, Trader and Tenancy Tribunal Act 2001 Local Court Act 2007 LEGISLATION CITED : Residential Tenancies Act 1987 Residential Tenancies Regulation 2006 Supreme Court Act 1970 Uniform Civil Procedure Rules

CATEGORY : Principal judgment

CASES CITED : NSW Land & Housing Corporation v von Reisner [2009] NSWSC 128

PARTIES : Koidu von Reisner (Plaintiff) State of New South Wales (Defendant)

FILE NUMBER(S) : SC 2010/133526

COUNSEL : In Person (Plaintiff) Ms E Elbourne (Defendant)

SOLICITORS : In Person (Plaintiff) McCable Terrill Lawyers (Defendant)

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BALL J

2 DECEMBER 2010

2010/133526 KOIDU VON REISNER v STATE OF NEW SOUTH WALES JUDGMENT 1 The plaintiff, Ms von Reisner, is a resident of a unit in an apartment block owned by the New South Wales Land & Housing Corporation, which is incorrectly sued as the State of New South Wales. Ms von Reisner entered into a residential tenancy agreement with the Corporation on 21 September 1998. 2 Ms von Reisner has commenced a number of proceedings in this and other courts and tribunals including the Consumer, Tenancy and Trade Tribunal (CTTT) in relation to her unit and the apartment block of which it forms part. These proceedings are the latest in that line of cases. 3 The present proceedings have their genesis in proceedings commenced by Ms von Reisner in the District Court on 9 September 2009 in relation to a number of complaints she had about the state of the public areas of the apartment block in which she lives and an adjacent block and about defects or problems associated with her own unit. In relation to complaints concerning the public areas, those proceedings were brought as a representative action on behalf of a number of other residents in the block. The relevant residents each signed a document headed "Notice of Consent to be a Group Member". Each document was in the same form. Each contained under the heading the following statement: "(Condition - - no costs implications to the members)" 4 A pre-trial conference was held in the District Court proceedings on 25 November 2009. That conference was adjourned until 8 February 2010 to permit Ms von Reisner to file and serve an amended statement of claim. No amended statement of claim was filed and the proceedings were further adjourned to 9 March 2010 and Ms von Reisner was ordered to file and serve an amended statement of claim within 21 days. Ms von Reisner did not comply with that order and did not appear on 9 March 2010, apparently due to ill health. There was a further directions hearing on 1 April 2010 which was adjourned to 23 April 2010. Ms von Reisner was given 7 days to file an amended statement of claim. Ultimately, the amended statement of claim was filed and served in court on 23 April 2010. In the meantime, the Corporation filed a motion to have the proceedings dismissed. 5 The matter came back before the District Court on 20 May 2010 to deal with the Corporation's motion. Ms von Reisner said she was not in a position to deal with the Corporation's motion because the affidavit on which the Corporation relied had not been served on her, although there was evidence that it had been sent to her home address by registered post. In any event, it was common ground between the parties that the District Court did not have jurisdiction to deal with a number of issues raised by the amended statement of claim. In those circumstances, the proceedings were adjourned to permit Ms von Reisner to make an application for transfer of the proceedings to this court. That application was made by summons filed in this court on 28 May 2010. 6 On 25 August 2010, the Corporation filed a motion seeking an order that, in the event that the court granted leave to transfer the proceedings to this court, the proceedings be dismissed pursuant to UCPR r 13.4(1) or alternatively r 12.7. Rule 13.4(1) provides: "If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings: (a) the proceedings are frivolous or vexatious, or (b) no reasonable cause of action is disclosed, or (c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim."