Mahommed v Unicomb [2016] NSWDC 114

District Court New South Wales

Medium Neutral Citation: Mahommed v Unicomb [2016] NSWDC 114 Hearing dates: 21 June 2016 Date of orders: 24 June 2016 Decision date: 24 June 2016 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) First and second defendants' application for Mr Smits to be refused leave to appear for the plaintiff is refused. (2) First and second defendants' Notice of Motion granted; proceedings struck out and dismissed pursuant to UCPR rr 13.4 and 14.28 (the Fair Trading Act claim set out in paragraphs 9(b), 13(a) and 18(f) of the amended statement of claim) and s 44 District Court Act 1973 (NSW) (the remainder of the claim). (3) Plaintiff pay defendants' costs. (4) Liberty to apply in relation to costs, provided that any such application must be made within fourteen (14) days. (5) Direct the Registry to forward a certified hardcopy of this judgment to the parties. Catchwords: JURISDICTION – plaintiff brings proceedings described in the statement of claim as being for "debt recovery" but in fact seeking a long and complex series of declarations as to resulting or constructive trusts, equitable compensation (Barnes v Addy) and relief under ss 197 and 237 Corporations Act 2001 (Cth) as well as damages under Pt V Trade Practices Act 1974 (Cth), ss 236 and 243 Competition and Consumer Act 2010 (Cth) and/or s 68 or 72 Fair Trading Act 1987 (NSW) – plaintiff brings application for summary dismissal as an abuse of process or alternatively a stay consistent with orders made in two other proceedings commenced in the District Court – jurisdiction of District Court in relation to claims for equitable relief (s 134 District Court Act 1973 (NSW)) and as restricted by s 44 District Court Act – whether claims for equitable relief and/or misleading or deceptive conduct would have been assigned to the Common Law Division of the Supreme Court – extent of District Court's jurisdiction to hear claims for equitable relief – all claims except the Fair Trading Act claim likely to have been assigned to the Equity or Commercial Division of the Supreme Court and thus outside the jurisdiction of the District Court – claim under the Fair Trading Act hopelessly pleaded – statements relied upon inadequately particularised or arose outside the limitation period – claims brought in other courts on similar subject matter stayed, struck out or unsuccessful - undesirability of claims in different jurisdictions in relation to similar subject matter – Fair Trading Act claim struck out under UCPR rr 13.4 and 14.28 – alternative finding that claim should be stayed consistent with orders made in other District Court proceedings Legislation Cited: Competition and Consumer Act 2010 (Cth), ss 236, 243 and Sch 2, ss 18 – 22 Corporations Act 2001 (Cth), ss 197 and 237 District Court Act 1973 (NSW), ss 9(1), 10, 44(1)(a), 134 and 135 Evidence Act 1995 (NSW), s 91 Fair Trading Act 1987 (NSW), ss 68 and 72 Supreme Court Act 1970 (NSW), s 53 Trade Practices Act 1974 (Cth), Part V, ss 52, 51AA, 51AC and 75B Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28 and 36.16 Cases Cited: Abbott v Klein [2015] NSWDC 45 Barnes v Addy [1874] 9 Ch App 244 Cairns v Freeman [2008] NSWSC 792 Commonwealth Bank of Australia v Hadfield (2001) 53 NSWLR 614 Emmerton v University of Sydney [1969] 1 NSWR 83; (1969) 89 WN (Pt 1) (NSW) 306; [1970] 2 NSWR 633 Fistar v Riverwood Legion and Community Club Ltd (2016) 18 BPR 35,799 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Greenhills Securities Pty Ltd v Loire Consultants Pty Ltd [2015] NSWSC 13 In the matter of Greenhills Securities Pty Ltd [2015] NSWSC 2021 Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd & Ors (No 6) (2007) 63 ACSR 1 Pelechowski v The Registrar, Court of Appeal (1999) 198 CLR 435 Smits v Unicomb; Smits & Mahommed v Unicomb [2016] NSWDC 26 Watson v Foxman (1995) 49 NSWLR 315 Xiang v Ward [2016] NSWDC 64 Category: Principal judgment Parties: Plaintiff: Peter Shah Mahommed First Defendant: Pamela Margaret Unicomb Second Defendant: Greenhills Securities Pty Ltd Third Defendant: Loire Consultants Pty Ltd Fourth Defendant: David William Dixon Representation: Counsel: Plaintiff: Mr L Smits (paralegal, with leave) First and Second Defendants: Mr M D Foley (solicitor) Third and Fourth Defendants: No appearance