Sethi v Cho (No 5)

1. [1]

   Listed before me today for hearing is a notice of motion filed by the plaintiff, Akhil Sethi, on 20 September 2023 (20 September Motion) and two other applications: one made by Mr Sethi objecting to Hicksons Lawyers representing the defendant, Joe Cho; and another made by Mr Cho to set aside a notice to produce for inspection dated 17 October 2023 issued by Mr Sethi.

2. [2]

   When the hearing commenced just after 10.00am, Mr Sethi made an application for an adjournment of these proceedings. After hearing from the parties, I refused to grant an adjournment for ex tempore reasons given this morning. I then dealt with Mr Sethi’s application objecting to Hicksons Lawyers representing Mr Cho and Mr Cho’s application to set aside the notice to produce. I dismissed Mr Sethi’s application in relation to Hicksons Lawyers, upheld Mr Cho’s application to set aside the notice to produce and ordered Mr Sethi to pay Mr Cho’s costs in relation to those applications for ex tempore reasons given at the time. As it was then 12.50pm, I adjourned the hearing until 2.00pm to deal with Mr Sethi’s 20 September Motion.

3. [3]

   Mr Sethi did not appear at 2.00pm nor was he in Court at 2.10pm when I came on the bench. The matter was called outside the Court three times and there was no appearance by him.

4. [4]

   I adjourned the hearing until 2.45pm and arranged for my Associate to send an email to Mr Sethi, copied to Mr Cho’s solicitors, noting that he had not appeared and that the hearing had been adjourned until 2.45pm that day. The email informed Mr Sethi that if he wished to make submissions in relation to his 20 September Motion he should attend Court room 8B at that time or, alternatively, he could attend the hearing by telephone using the virtual Court room facilities with the dial in details having been provided to him. The email noted that if he did not appear in person or by telephone, the hearing may proceed in his absence.

5. [5]

   When I came back on the bench just after 2.45pm, Mr Sethi had not appeared and did not join the Court using the virtual Court room facilities. The matter was called outside the Court three times and there was no appearance by him.

6. [6]

   It is now 3.00pm and there is still no appearance by Mr Sethi. In that circumstance, Ms Patrick, who appears for Mr Cho, has asked that Mr Sethi’s notice of motion filed on 20 September 2023 be dismissed.

7. [7]

   Mr Sethi was on notice that this Court was going to deal with the 20 September Motion today and his adjournment application was refused this morning. He was informed by the Court prior to the lunchtime adjournment that the hearing in relation to the 20 September Motion would proceed this afternoon. No explanation has been given by Mr Sethi for his absence.

8. [8]

   Mr Sethi’s 20 September Motion was referred to me, sitting as the Equity Duty Judge, on 12 October 2023 by the Equity Registrar to consider whether it was an abuse of process and should be struck out.

9. [9]

   The matter came before me again on 13 October 2023 in circumstances where Mr Cho had indicated to the Court that he would be seeking orders that the 20 September Motion be dismissed and that an application may also be made by him for orders that would have the effect of preventing Mr Sethi from taking any further steps in these proceedings without leave of the Court.

10. [10]

    On 20 October 2023, when the 20 September Motion was next before the Court, Mr Sethi made an oral application for an adjournment until 15 December 2023 that was refused, although a short adjournment of two weeks was granted. The 20 September Motion was listed today, having taken into account discussions with the parties on 20 October 2023, with Mr Sethi asking for a hearing date between 3 to 5 November 2023 on the basis that the Court had refused his adjournment to 15 December 2023 and Ms Patrick indicating that 3 November 2023 was acceptable. As already noted, Mr Sethi’s adjournment application this morning was refused.

11. [11]

    In the absence of any appearance by Mr Sethi this afternoon and an adequate explanation for his absence, I accept Ms Patrick’s submission that Mr Sethi’s 20 September Motion should be dismissed with costs, similar to the approach of Beazley P (as her Honour then was) in Sebie v Pham [2018] NSWCA 332.

12. [12]

    It is, however, also appropriate to record my views on the merits of Mr Cho’s application to dismiss Mr Sethi’s 20 September Motion and set out my other reasons why it should be dismissed and why I have granted Mr Cho’s further application for an order that Mr Sethi not be entitled to file any further motion or take a step in these proceedings without leave of the Court.

13. [13]

    In coming to my views, I have taken into account Mr Cho’s written submissions in support of his application that Mr Sethi’s 20 September Motion should be dismissed, which were filed on 18 October 2023 in accordance with previous directions of this Court. I have also taken into account Mr Sethi’s oral submissions made on 13 and 20 October 2023 in relation to his 20 September Motion and his affidavit affirmed on 13 October 2023 (which the Court read that day).

Procedural background

1. [14]

   By way of background, Mr Sethi (as tenant) and Mr Cho (as landlord) were parties to a residential tenancy agreement in relation to a premises at St Leonards. They have been involved in long-running proceedings in the New South Wales Civil and Administrative Tribunal (NCAT) in relation to the termination of the tenancy agreement and possession orders made by NCAT in favour of Mr Cho.

2. [15]

   Mr Sethi’s 20 September Motion was filed in proceedings that he commenced on an urgent ex parte basis by summons filed on 8 August 2023, which sought the following relief:

3. [16]

   On 10 August 2023, Lindsay J made orders for the proceedings to be listed before the Equity Duty Judge at 2.00pm the following day, having directed Mr Sethi to serve the orders on Mr Cho by 4.00pm. His Honour’s orders included lengthy notations which recorded the steps taken in the NCAT proceedings, set out Principal Member AD Suthers’ reasons for refusing Mr Sethi’s 8 August 2023 application for a stay of the order for possession and other orders made by NCAT and noted that Mr Sethi had informed the Court that he intended to file a notice of appeal in the Court of Appeal in relation to orders made in the NCAT proceedings. His Honour also made the following order:

4. [17]

   On 10 August 2023, at 4.07pm, Mr Sethi filed a notice of appeal in the Court of Appeal (2023/00240746) (Appeal Proceedings) which seeks to appeal various orders made by NCAT, including orders relating to termination of the tenancy agreement and for possession.

5. [18]

   On 11 August 2023, at 2.00pm, the matter first came before me as Equity Duty Judge. On that occasion, Mr Sethi appeared for himself and Ms Patrick, a solicitor at Hicksons Lawyers, appeared on behalf of Mr Cho. Mr Sethi made oral submissions in support of the relief sought in his summons. During the course of the hearing, Mr Cho, through Ms Patrick, proffered an undertaking not to seek to enforce the warrant for possession issued by NCAT on 7 August 2023 until 25 August 2023 to allow a hearing before NCAT on 23 August 2023 to take place. He also proffered an undertaking to notify the Office of the Sheriff of New South Wales not to take any further steps to enforce the warrant of possession in accordance with that undertaking.

6. [19]

   Having heard from the parties, I refused to grant the relief sought by Mr Sethi in his summons for essentially two reasons.

7. [20]

   First, I did not consider there was any utility in granting an urgent injunction to restrain execution of the order for possession in circumstances where Mr Cho had given an undertaking through his solicitor not to enforce the warrant for possession up until 25 August 2023 to allow for the hearing on 23 August 2023 before NCAT to proceed (T15.48–16.1; T18.49–19.2).

8. [21]

   Second, as Mr Sethi’s applications in relation to the orders of NCAT were the subject of an appeal filed by Mr Sethi in the Court of Appeal, I considered that any applications he wished to make in relation to a stay of the NCAT orders, the tenancy agreement or writ of possession should have been brought by Mr Sethi before the Court of Appeal and determined as part of the Appeal Proceedings or in NCAT (T19.2–8).

9. [22]

   At the hearing on 11 August 2023, the parties also made submissions on costs. Mr Sethi sought an order for costs in his favour and Ms Patrick sought orders for costs on behalf of Mr Cho. I concluded that neither party should be awarded their costs in circumstances where Mr Cho had given an undertaking at the first possible opportunity and, in my view, Mr Sethi had brought his applications in the wrong Court (T23.41–9).

10. [23]

    When Mr Sethi maintained that these proceedings should continue beyond 25 August 2023, I explained to Mr Sethi that his summons had been dealt with, there was no further application before the Court and the proceedings in this Court had been completed (T25.12–39).

11. [24]

    On 11 August 2023, the Court made the following orders and notations:

12. [25]

    At 11.59pm on 11 August 2023, Mr Sethi filed a notice of motion in these proceedings seeking, amongst other orders: that the orders made on 11 August 2023 be set aside or varied pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 36.15(1) and r 36.16 and Civil Procedure Act 2005 (NSW) (CPA), s 63; that the proceedings be removed from NCAT to continue within the Court of Appeal; that the warrant for possession be set aside or, alternatively, stayed until the first directions hearing in the Court of Appeal on 20 September 2023; and for costs (11 August Motion).

13. [26]

    Mr Sethi’s 11 August Motion came before Robb J, sitting as the Equity Duty Judge, on 17 August 2023. Ms Patrick appeared on behalf of Mr Cho and Mr Sethi represented himself. Robb J dismissed Mr Sethi’s 11 August Motion and ordered him to pay Mr Cho’s costs of the notice of motion.

14. [27]

    In an ex tempore judgment given on 17 August, Sethi v Cho (Supreme Court (NSW), Robb J, 17 August 2023, unrep), Robb J stated:

15. [28]

    At 2.08pm on 17 August 2023, Mr Sethi filed a notice of motion seeking orders that were identical to those sought in the 11 August Motion, save for the inclusion of a reference to UCPR, r 36.16 and an additional date in respect of orders made by NCAT (17 August Motion).

16. [29]

    On 24 August 2023, Mr Sethi’s 17 August Motion was referred by the Equity Registrar to Robb J, sitting as the Equity Duty Judge that day. After hearing from Mr Sethi and Ms Patrick on behalf of Mr Cho, Robb J dismissed Mr Sethi’s 17 August Motion forthwith on the ground that it was an abuse of process, ordered that Mr Sethi pay Mr Cho’s costs of the motion and ordered that the orders be entered forthwith.

17. [30]

    The transcript records Robb J’s reasons as including the following (T3.17–23):

Mr Sethi’s 20 September Motion

1. [31]

   It is in this context that the orders sought by Mr Sethi in his 20 September Motion are to be considered.

2. [32]

   Mr Sethi’s 20 September Motion seeks the following orders:

3. [33]

   I deal with each order in turn.

4. [34]

   I accept Mr Cho’s submission that there is no basis for an order that these proceedings be aligned or linked with the Appeal Proceedings.

5. [35]

   Nothing advanced by Mr Sethi in his written or oral submissions to this Court identifies the basis on which such an order could be made. The order sought does not, as Mr Sethi's Motion contends, regularise the proceedings and it would be irregular and likely impermissible for this Court to make such an order. This is especially so as there are, in my view, no further issues to be resolved in these proceedings as Mr Sethi’s summons filed on 8 August 2023 was dealt with by this Court in its entirety on 11 August 2023.

6. [36]

   UCPR, r 36.15(1) provides the Court with a general power to set aside a judgment or order in any proceedings upon sufficient cause being shown if the judgment was given or entered or the order was made irregularly, illegally, or against good faith.

7. [37]

   As I understood Mr Sethi’s submissions based on the documents filed with the Court and his oral submissions, he contends that the orders made by Robb J on 17 and 24 August 2023 were made irregularly. There was no submission to the effect that Robb J’s orders were made illegally or against good faith.

8. [38]

   The concept of irregularity, for the purposes of UCPR, r 36.15, includes contravention of or non-compliance with specific provisions governing the making or entry of a judgment or order. Irregularity relevant to the present rule does not extend to errors attributable to the forensic decisions of the parties or to errors in the merits of the substantive decision or earlier procedural deficiencies: Ritchie’s Uniform Civil Procedure NSW at [36.15.10] and the cases there cited.

9. [39]

   In Mr Sethi’s written submissions, he contended that:

10. [40]

    The irregularities and anomalies referred to by Mr Sethi in respect of the online Registry and the attempts to transfer the proceedings to the Common Law Division relates to the fact that the Registry has, in the past, identified these proceedings as being in the Common Law Division of this Court. This appears to have arisen because the front page of Mr Sethi’s summons, as filed in Court on 8 August 2023, identified the proceedings as “Common Law Division”, “General List”, and not as “Equity Division”, which Mr Sethi described as his “mistake”.

11. [41]

    Mr Sethi’s concern was dealt with on 13 October 2023 by this Court directing the Registry to update the records of these proceedings to reflect that they were commenced in the Equity Division of the Supreme Court and were proceedings in this Division. To the extent that there has been an anomaly in the way in which the online Registry recorded these proceedings, it does not mean that Robb J’s orders were irregularly made.

12. [42]

    Further, there is nothing in the Court file or in the materials that have been filed by Mr Sethi which support Mr Sethi’s assertion that there has been some attempt to link these proceedings with other current proceedings he has in the Common Law Division.

13. [43]

    I do not accept Mr Sethi’s contention that he has not been provided a proper opportunity to file his submissions on the 20 September Motion or make submissions before Robb J because the matter has only continued in the Duty List. Mr Sethi was provided with an opportunity to make submissions before Robb J in relation to the 11 and 17 August Motions, which were rejected by his Honour.

14. [44]

    As to the 20 September Motion, that was filed by Mr Sethi without a supporting affidavit. He has since filed an affidavit dated 13 October 2023 and an affidavit dated 3 November 2023, which was filed in Court this morning. He has been provided with two opportunities to adduce further evidence and submissions in relation to matters raised by the 20 September Motion and has failed to do so. In my view, no basis has been advanced in Mr Sethi’s affidavits, or his oral and written submissions, upon which the Court could conclude that Robb J’s orders were made irregularly or against good faith.

15. [45]

    As to Mr Sethi’s reliance on the other provisions referred to in his 20 September Motion, I accept Mr Cho’s submission that UCPR, r 36.16(4) is not applicable to Mr Sethi’s application. That rule does not provide a source of power for the Court to set aside or vary a judgment or order but simply provides that nothing in the rule affects any other power of the Court to set aside or vary a judgment or order.

16. [46]

    As to s 63 of the CPA, that provision applies where there is, by reason of anything done or omitted to be done, a failure to comply with any requirement of the CPA or of the rules of the Court, relevantly, by a party. Mr Sethi has not identified any relevant failure to comply by Mr Cho.

17. [47]

    In conclusion, Mr Sethi has not articulated any proper grounds for setting aside or varying the orders made by Robb J on 17 and 24 August 2023 in respect of which Mr Sethi seems to take objection to because he does not agree with the outcomes.

18. [48]

    Order 4 of Mr Sethi’s 20 September Motion seeks leave to issue a subpoena to the property agent of the premises the subject of the tenancy agreement, namely, Century 21 West Pacific (Century 21).

19. [49]

    After filing the 20 September Motion, Mr Sethi sought leave, pursuant to UCPR, r 7.3, from the Court to issue a subpoena to Century 21. That application was considered by a Senior Deputy Registrar of this Court and refused on 5 October 2023. Mr Sethi was notified of the Senior Deputy Registrar’s reasons for refusing leave, which reasons record that:

20. [50]

    Mr Sethi has not sought a review of that decision under UCPR, r 49.19.

21. [51]

    In any event, for the reasons set out by the Senior Deputy Registrar and in my ex tempore judgment given this morning setting aside the notice to produce issued by Mr Sethi and refusing Mr Sethi’s application to disqualify Hicksons Lawyers from representing Mr Cho (at [28]–[29]), I would not grant leave to Mr Sethi to issue a subpoena to Century 21. I am not satisfied that Mr Sethi has established a legitimate forensic purpose for issuing the subpoena or that there is a reasonable basis, beyond speculation, that the documents he seeks would assist in these proceedings or are relevant to an issue in them.

22. [52]

    I am also persuaded by Mr Cho’s submission that Mr Sethi has not established any basis upon which he is entitled to an order as sought in order 5 of Mr Sethi’s 20 September Motion, that the fees and costs of these proceedings be granted to Mr Sethi, including the interest prior to the judgment and after the judgment until the money is paid in full.

23. [53]

    The orders made on 11 August 2023 dealt with the costs of the summons, providing that each party was to pay their own costs: see order 7.

24. [54]

    Robb J has made costs orders against Mr Sethi, in favour of Mr Cho, in relation to Mr Sethi’s 11 and 17 August Motions.

25. [55]

    Given the outcome of his application, there is no basis for Mr Sethi to be awarded costs.

26. [56]

    Order 6 of the 20 September Motion seeks an order that the Court “provide any other relief for damages to the plaintiff as appropriate”.

27. [57]

    Leaving to one side that the relief sought by Mr Sethi in his summons has been refused, no cause of action has been pleaded or identified by Mr Sethi in his summons or submissions which could possibly entitle him to any relief to damages.

28. [58]

    For the above reasons, Mr Sethi’s 20 September Motion should be dismissed with an order that he pay Mr Cho’s costs.

29. [59]

    I should also record that there is force to Mr Cho’s submission that Mr Sethi’s 20 September Motion is an abuse of the Court’s process. As he submits, order 1 was without legal foundation; orders 2 and 3 effectively sought the same or similar relief to the orders sought by Mr Sethi’s 11 and 17 August Motions, which Robb J found involved abuses of the Court’s process; order 4 sought documents which, as I have said, lack a legitimate forensic purpose; and there was no proper basis for seeking costs or damages in orders 5 and 6.

Further order preventing steps being taken by Mr Sethi in these proceedings

1. [60]

   In addition to seeking orders that Mr Sethi’s 20 September Motion be dismissed with costs, Mr Cho seeks an order that would prevent Mr Sethi from taking any further steps in these proceedings without the leave of the Court so as to prevent further abuses of the process of the Court.

2. [61]

   Having regard to the procedural background, I am persuaded that it is appropriate to make such an order in this case.

3. [62]

   This is particularly so in circumstances where, on other occasions before this Court, Mr Sethi has indicated that he would pursue further applications to reagitate the same issues when his applications were refused. On 13 October 2023, after Mr Sethi was refused leave to file an amended notice of motion, Mr Sethi said twice, “Well, I can file another one, that’s not a problem” (T4.5–17; T13.19–26). This morning, after it was explained to Mr Sethi that his adjournment application had been refused and that today’s hearing would deal with his 20 September Motion, he said “I mean, then I would file another motion” (T13.43).

4. [63]

   Mr Sethi’s conduct and statements leave the Court to conclude that it is inevitable that he will file a further motion in the absence of any order that would prevent Mr Sethi from taking further steps in these proceedings without leave of the Court. It is a matter for Mr Sethi if he wishes to appeal the orders and judgments of this Court. However, Mr Cho and the Court should not have to deal with a series of motions which seek to revisit issues in proceedings commenced by a summons which, as has been explained to Mr Sethi, has been dealt with and is at an end.

5. [64]

   The steps taken by Mr Sethi to date have led to costs to Mr Cho and Court time that are disproportionate to civil litigation conducted in a manner consistent with the overriding purpose of the CPA to facilitate the just, quick and cheap resolution of the real issues in the proceedings and the dictates of justice. Justice needs to be considered from the perspective of both parties, not just Mr Sethi: National Australia Bank Limited v Mellander [2023] NSWSC 1242 at [24].

6. [65]

   In my view, justice in this case dictates that I should make the order sought by Mr Cho that Mr Sethi be prevented from taking any further steps in the proceedings without leave of the Court.

7. [66]

   For these reasons, I make the following orders:

   1. (1)

      Dismiss the plaintiff’s Notice of Motion filed on 20 September 2023.

   2. (2)

      The plaintiff to pay the defendant’s costs in relation to the plaintiff’s Notice of Motion filed on 20 September 2023.

   3. (3)

      Order that the plaintiff is not to file any further notice of motion, other Court document or take any other steps in these proceedings, such as seeking leave to issue a subpoena, without the leave of the Court.

   4. (4)

      These orders be entered forthwith.