Qasim v Owners Strata Plan 61034 (No. 2)

1. [1]

   By Summons filed 14 May 2021 Shaheen Qasim seeks leave to appeal a decision of Darcy LCM made on 15 April 2021. That decision was to refuse an application by Dr Qasim to set aside default judgment that had been entered against her by the Owners Strata Plan 61034 (the Owners) in the Port Macquarie Local Court on 22 January 2021.

Factual Background and proceedings in the Local Court

1. [2]

   Dr Qasim was the registered proprietor of Lots [REDACTED] in Strata Plan 61034, [REDACTED].

2. [3]

   In December 2020 the Owners filed proceedings asserting that Dr Qasim had failed to pay levies raised under the Strata Schemes Management Act 2015. She did not file a defence. An application for default judgment was made.

3. [4]

   The sum sought was calculated based on an affidavit of solicitor Anthony Patrick Maher sworn 22 January 2021. The sum comprised the amount owing for levies, plus filing fees, service fees and solicitor’s costs. Mr Maher deposed to the fact that no payments had been received or credits accrued to reduce the debt since the proceedings had commenced.

4. [5]

   The Local Court entered judgment for the Owners in the amount sought. Dr Qasim filed a notice of motion on 22 March 2021 seeking orders that, amongst other things, the default judgment entered on 22 January be set aside. The other orders sought reveal a focus, if not fixation, on a perceived issue about strata levies that had remained unresolved since 2017. Another feature of the notice of motion was that it named as additional parties, the “on site Managers of [REDACTED]” by way of purported cross-claim.

5. [6]

   In the affidavit filed in support of her notice of motion, Dr Qasim stated that she had not filed a defence after service of the statement of claim and prior to default judgment being entered because she “had filed a Form 3 in the Supreme Court of New South Wales dated 23 September 2020” and “was awaiting a response and confirmation from Mr Maher to clarify the issues she had raised with him over more than 24 months” which she described as “information that was crucial to obtain”.

6. [7]

   Nothing in the affidavit material filed by Dr Qasim in the Local Court revealed any grounds of defence. The attempt to file documents in the Supreme Court in 2020 was apparently rejected.

7. [8]

   The reference by Dr Qasim to a “Form 3” seems to be a reference to a Form A3 Application for Assessment of Ordered Costs which Dr Qasim appended to her affidavit of 23 March 2021 filed in support of her application to set aside the default judgment. In the application form (which is on its face intended for use in party/party costs disputes) Dr Qasim has referenced the Local Court proceedings file number, described parties as “Owner*landlord Shaheen Qasim” and “date of order” as 7 March 2019. In that part of the form that requires specification of the “costs that you want assessed”, Dr Qasim has stated: “Defective SOC be dismissed from contempt of court Act 1971” (sic). (This appears to be, perhaps, a reference to the Contempt of Courts Act, 1971, India. There is no “Contempt of Courts Act” in force in Australia).

8. [9]

   Dr Qasim filed written submissions on 12 April 2021 which made various confused and confusing allegations and complaints about people who were not a party to the Local Court proceedings.

The hearing in the Local Court

1. [10]

   Dr Qasim’s notice of motion was heard on 15 April 2021 by Magistrate Darcy. The transcript of the hearing indicated that Dr Qasim appeared by telephone and represented herself. Dr Qasim asserted that the levies “are a false premise based on the activities of the onsite manager that claim that the Law Society was involved in raising of the levies and there are a couple of sums involved with these levies that are affecting all the innocent owners”.

2. [11]

   Magistrate Darcy noted that no defence had been filed. Her Honour also indicated that in order to set aside the default judgment she was “required to be satisfied whether sufficient cause has been shown and a bona fide ground of defence and an adequate explanation as to why you haven’t filed that defence”.

3. [12]

   Dr Qasim submitted that she had not filed a defence because of the filing of the “Form 3” and complained about Mr Maher (the solicitor for the Owners) not answering issues she had raised with him “for over 24 months”.

4. [13]

   Magistrate Darcy observed that Dr Qasim’s submissions were misconceived and her arguments seemed to be relevant to other proceedings.

5. [14]

   There was evidence tendered that Dr Qasim had been given notice as to what was required in order for the default judgment be set aside in correspondence that Mr Maher had forwarded to her. Magistrate Darcy expressed the view that the purported cross-claim that Dr Qasim referred to in her notice of motion was irrelevant.

6. [15]

   Her Honour correctly identified the appropriate power contained in Rule 36.16 of the Uniform Civil Procedure Rules 2005 (NSW) (the UCPR) and that the relevant test was satisfaction in light of all of the circumstances that a genuine ground of defence had been identified and an explanation for not having filed a defence being proffered and accepted. This approach was entirely orthodox.

7. [16]

   Her Honour finally gave a short oral decision:

Proceedings in this Court

1. [17]

   The summons filed on 14 May 2021 appears to have been prepared without legal assistance. It pleads:

2. [18]

   The summons named ten defendants:

3. [19]

   On 19 October 2021 Schmidt AJ heard argument from various of the named defendants complaining that they had been improperly joined. Schmidt AJ was satisfied that none of them were proper parties to the proceedings and the proceedings against each of them were dismissed with costs ordered to be paid by the plaintiff for those defendants who had incurred costs. Her Honour also made orders for service of a notice of motion and other documents on the Owners, and for Dr Qasim to seek leave to join the Owners as a party to the appeal: Qasim v Kekatos Lawyers [2021] NSWSC 1366.

4. [20]

   On 16 March 2022 Justice Dhanji dealt with an application by Dr Qasim which included, amongst other things, that the proper defendant (the Owners) be joined as defendant to the proceedings. The Owners did not oppose the joinder: Application of Qasim [2022] NSWSC 302.

5. [21]

   On 9 May 2022 the Common Law Registrar fixed a hearing date for the appeal - 27 October 2022 - and made orders regarding documents that had to be filed and served by Dr Qasim.

6. [22]

   As this order was not complied with, at a directions hearing in August 2022, the Owners indicated an intention to file a notice of motion seeking possible strike out or stay of proceedings.

7. [23]

   A notice of motion to that effect was filed on 26 August 2022. It was dismissed by Campbell J on 15 September 2022: Qasim v Owners of Strata Plan 61034 (16 September 2022) on the basis that “the better approach was to let the matter proceed to a hearing as contemplated” because the necessary material identified by the Common Law Registrar’s orders in May 2022 had “found its way into the file” and there was no practical problem in proceeding.

8. [24]

   Dr Qasim was noted in the judgment to have assured his Honour that she would file an affidavit in conformity with the requirements of the UCPR 50.14 within 7 days. She did not do so, but did file an affidavit on 21 September 2022 in purported compliance with Campbell J’s orders, naming on the cover sheet other people who were not party to the proceedings, and setting out an incomprehensible mix of assertions and appending material irrelevant to the appeal.

9. [25]

   On 25 October 2022 Dr Qasim made a unilateral request by email to my chambers for an adjournment, followed by an inadequate medical certificate referring to the “need for a 3-month adjournment”.

10. [26]

    Despite being informed that a notice of motion and affidavit in support would have to be filed and served and failing to do so, Dr Qasim still made an oral application for adjournment at the commencement of the hearing. This was refused: Qasim v Owners Strata Plan 61034 [2022] NSWSC 1604.

11. [27]

    Written submissions had been provided by Dr Qasim on the morning of the hearing which revealed a mistaken interpretation of the decision of Campbell J that it “identified and reaffirmed that the case against Dr Qasim was lacking in evidence and challenge”. The submissions also asserted that the Owners were not the correct party, that the Owners have been “duped” into believing that the Law Society’s involvement was legitimate and that “it has been a scam as confirmed with failure to challenge”.

12. [28]

    There were other frankly incomprehensible and apparently groundless assertions about other events and other people with a level of focus on asserted misconduct on the part of the solicitor for the Owners, Mr Maher.

13. [29]

    Once the application for adjournment was refused Dr Qasim made oral submissions which were difficult to follow but seemed to come down to five key points: first, there was no evidence provided by the defendants to challenge her argument that there was no Law Society arbitration that had taken place as required (seemingly a reference to events in 2017 and an earlier dispute about strata levies), second, the Local Court made an error of law by not reading the evidence and not examining the issues, third, the Owners of Strata Plan 61034 was not the correct defendant to the proceedings, fourth, the judgment obtained in the Local Court was the subject of a conflict of interests and fifth, she in fact has a bona fide defence and that is that the solicitor for the Owners (Mr Maher) has failed to deal with her queries about the raising of the levies in the first place.

14. [30]

    Other more inchoate assertions were made along the lines of Mr Maher having “threatened her with retaliation”, (which seems to be a reference to correspondence about costs implications if she pursues unmeritorious arguments and assertions) and second, that “everything” has been a “whitewash” and that people have been tricked into believing that there was a legitimate examination by a Law Society nominee some years ago.

15. [31]

    None of these arguments address the relevant considerations for leave to appeal, nor do they show any error in the decision Magistrate Darcy made in April 2021.

16. [32]

    Mr Maconachie submitted that the decision of Magistrate Darcy was correct. There was no basis upon which she could be satisfied that Dr Qasim had a bona fide defence. The spurious assertions by Dr Qasim against people not party to the proceedings only highlighted the lack of merit to her position. Dr Qasim still persisted in raising spurious and irrelevant allegations against multiple strangers to the proceedings. Even in the Supreme Court she has not, in the affidavit material filed, identified anything resembling a ground of defence.

Principles and statutory matters

1. [33]

   As the decision to refuse to set aside the default judgment was interlocutory in nature (see Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246; [1981] HCA 20 at 248), the avenue for appeal is s 40(2)(a) of the Local Court Act 2007 (NSW), which provides:

2. [34]

   Section 41(1) of the Local Court Act further provides:

3. [35]

   The appeal is by way of rehearing: Supreme Court Act 1970 (NSW) s 75A(5). This Court has the same powers and duties as the court below: Supreme Court Act 1970 (NSW) s 75A(6). This Court should have regard to the conclusions of the Magistrate, but should reach its own conclusions and has options under s 41 as to the way it should deal with the issues raised.

4. [36]

   This Court should not overly parse and pick over the reasons of the learned Magistrate. Appropriate allowance should be given to the pressures under which magistrates are placed by the volume of cases coming before them: Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Limited (2006) 67 NSWLR 402; [2006] NSWSC 343 at [15]; Achuthan v Coats (1986) 6 NSWLR 472 at 479A, 485C-D; Fantakis v Local Court of New South Wales [2020] NSWSC 931 at [25].

Decision

1. [37]

   The reasons comprise a short and pragmatic judgment embedded in the transcript of the day, in a no doubt busy court list. They are certainly sufficient to deal with the issues presented and they are undoubtably correct.

2. [38]

   None of the assertions in the summons, to the extent the assertions in it can be understood, provide any basis to conclude that there was any error on the part of Magistrate Darcy in the way she approached and determined the issues before her.

3. [39]

   Having myself considered the evidence presented, and in particular the (ongoing) absence of any legitimate defence to the claim for unpaid strata levies, I have concluded that the appeal is utterly hopeless and so leave to appeal must be refused.

4. [40]

   I accept the submissions made by Mr Maconachie on behalf of the Owners that there was no error, legal or otherwise, in the decision of the Magistrate.

5. [41]

   A significant amount of this Court’s time has been taken up dealing with undisciplined, spurious and confusing allegations, applications and arguments made by Dr Qasim. Unnecessary costs have been incurred. There is reference in Mr Maconachie’s written submissions to a request that the Court consider awarding indemnity costs to the Owners.

6. [42]

   Any application for indemnity costs should be the subject of written submissions of no more than two pages, to be provided to chambers by email within 7 days and any submissions in response by Dr Qasim, within 14 days.

Orders

1. [43]

   I make the following orders:

   1. (1)

      Leave to appeal against the decision of Darcy LCM of 15 April 2021 is refused.

   2. (2)

      The plaintiff is to pay the defendant’s costs of the proceedings.

   3. (3)

      Any application for indemnity costs should be the subject of written submissions of no more than two pages, to be provided to chambers by email within 7 days, and any submissions in response by Dr Qasim, within 14 days.