Kostov v Amelie Housing

The plaintiff commenced these proceedings by summons filed on 2 October 2018 purporting to appeal as of right a decision of the Local Court made on 19 July 2018. The decision was interlocutory, being refusal by a Magistrate of the plaintiff's application to file an amended statement of claim. The plaintiff is self-represented in these proceedings as she was in the Local Court and as she has been in numerous other matters commenced by her in this Court.

On 18 October 2018 these proceedings came before Johnson J on referral from the Registrar and his Honour considered evidence provided by the defendant to establish that, as originally named in the summons, there was an error in the legal description of the defendant. His Honour considered that and other procedural aspects of the case and at the same time considered related proceedings which have been commenced with the same title (No 2018/300286). Those latter proceedings are an appeal from the Civil and Administrative Tribunal.

Johnson J gave judgment on the procedural matters that were before him: Kostov v St Vincent De Paul Housing trading as Amelie Housing & Anor [2018] NSWSC 1581. That judgment provides the background to the summons which is now before me concerning a purported appeal from the Local Court. For ease of reference I will draw upon his Honour's summary and repeat some of the critical matters here.

The plaintiff entered into a residential tenancy agreement with the defendant on 27 July 2017 for a room in a building in Pyrmont. On 4 October 2017 the defendant brought proceedings against the plaintiff in the Tribunal to recover unpaid rent. The amount in issue was very small, $442. The Tribunal made an order for payment on 1 November 2017 and gave leave for the defendant to re-list the proceedings and seek a possession order if the arrears were not paid. They were not paid and further arrears accrued. The defendant therefore applied to the Tribunal for an order for possession and on 30 May 2018 a warrant was issued to the Sheriff to recover possession for the defendant.

The plaintiff pursued internal appeals within the Tribunal. The first such appeal was dismissed. This was followed by repeated applications by the plaintiff to have the Appeal Panel’s decision set aside. Those applications were rejected on 14 and 18 September 2018 and on 9 October 2018. This was characteristic of the plaintiff's conduct of legal proceedings generally as exhibited in multiple proceedings she has litigated in this Court. When dissatisfied with a decision, the plaintiff habitually applies to another judicial officer of the same level to reverse it. As in the case of her proceedings in the Tribunal, this leads to numerous futile time-wasting applications.

After the order for payment of arrears had been made by the Tribunal on 1 November 2017 the plaintiff filed a statement of claim against the defendant in the Local Court. This claimed damages for economic and non-economic loss alleged to have arisen out of the failure by the defendant satisfactorily to address her complaints about the conduct of tenants of other rooms in the house at Pyrmont. No contractual basis for these damages claims was pleaded, no duty of care was alleged let alone substantiated and no particulars of the economic and non-economic loss were provided. There was no pleading of how loss was caused by any actionable conduct or omission of the defendant.

On 19 July 2018 the magistrate refused the plaintiff leave to file an amended statement of claim pleading altered allegations against the second defendant, "Women and Girls Emergency Service". This proposed amended pleading in the Local Court is attached to an affidavit of the plaintiff sworn 3 October 2018 and filed herein. It did not disclose a cause of action against either defendant in the Local Court.

There is nothing in any of the affidavits of the plaintiff filed in the proceedings in this Court, or in her copious written submissions with extensive annexures, to indicate any basis upon which the plaintiff could contend that the magistrate erred in refusing leave to make the amendments.

On 18 October 2018, for the reasons given by Johnson J in the judgment which I have cited earlier, his Honour made ten procedural orders of which the first six are presently relevant. Order 1 was to grant leave to the plaintiff to file and serve an amended summons in this proceedings by 5pm on Monday, 22 October 2018. His Honour expressly directed that: “The plaintiff should not be allowed to rely upon any amended summons filed after that time without the leave of the Court."

The further directions concerning this matter, so far as relevant to what I am to deal with today, covered the service of evidence and the return of the proceedings to the Registrar's list at 9am on 21 November 2018 for the purpose of fixing a hearing date.

His Honour ordered that the second defendant, as named in the summons when filed in this Court, be removed as a defendant to the proceedings. The plaintiff’s appeal therefore continues only against Amelie Housing. The plaintiff has not filed an amended summons or any further evidence. She has not sought leave to be allowed to rely upon any amended summons which she might file out of time.

Instead, by notice of motion filed on 23 October 2018, the plaintiff applied to have Johnson J’s orders of 18 October 2018 set aside and to have the second defendant added back as a party to the summons. That notice of motion was accompanied by extensive annexures comprising mostly emails of no apparent relevance. The plaintiff filed on 8 November 2018 written submissions with further bulky but irrelevant annexures in connection with this notice of motion.

No justification is shown for setting aside Johnson J’s orders. Her notice of motion invokes rr 36.15 and 36.16 of the Uniform Civil Procedure Rules 2005 (NSW) and s 56 of the Civil Procedure Act 2005 (NSW). Rule 36.15 is concerned with irregularly entered orders. Rule 36.16 is concerned with orders that have not yet been entered and orders entered in default or after a hearing at which the affected party was not present. No part of those rules applies. Ms Kostov was represented by Mr Watson before Johnson J on 18 October 2018. Section 56 of the Civil Procedure Act prescribes general principles for the “just, quick and cheap” conduct of litigation. Ms Kostov is egregiously in breach of those principles. This section does not support her application.

On Thursday 15 November 2018 the Registrar wrote to the plaintiff with respect to this proceeding and advised her in the following terms:

Ms Kostov replied to that email in terms not relevant to repeat but which were sufficient to indicate that she had received it. Ms Kostov has not appeared this morning when the matter was called on before the Registrar, nor again when the matter has been referred into the duty list, as she had been advised.

As the plaintiff is not here to support her notice of motion filed 23 October 2018, notwithstanding having been informed that it would be listed for hearing today, I will dismiss the notice of motion with costs. That means that Johnson J’s directions of 18 October will stand. Pursuant to those directions, the plaintiff would not be allowed to rely upon any amended summons filed after 22 October 2018 without leave of the Court. She has not sought such leave so the proceedings fall to be considered on the summons which is on the file.

At [53] of his Honour’s judgment, the following is recorded:

Johnson J’s judgment of 18 October 2018 was sent to the plaintiff. Further, she requested and obtained a copy of the transcript of the proceedings before his Honour that day. In these circumstances the plaintiff’s failure to attend today to answer my concern expressed in the Registrar’s email of 15 November 2018 regarding how she would be entitled to leave to appeal from the Local Court is a fair indication that she has no argument that she wishes to advance in support of such leave. She has been given the opportunity to attend and justify leave and has not taken it.

I consider that the summons in its present form could be struck out for the want of any claim for leave to appeal. It is, in effect, an incompetent purported appeal as of right. I should proceed to consider whether leave would be granted, if sought. I will take that course forthwith, in circumstances where Ms Kostov has notice that leave is to be considered and has not sought to attend and substantiate the application. The principles upon which leave to appeal may be granted have been often repeated, for example, in Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69 and Michail v Mount Druitt and Area Community Legal Centre Inc [2015] NSWCA 396. At [49] of the latter decision, Leeming JA and Emmett AJA said:

None of those alternatives could be demonstrated in respect of the application for leave in the present case. The refusal of the learned magistrate to allow amendment of the statement of claim in the Local Court was, on the face of the proceedings, justified by the absence of any intelligible cause of action in the document. The claim in the Local Court is not only confused and incomplete but, on any view, even if more facts were pleaded and a cause of action shown it could only involve a very small amount of damages. Broadly, the nature of what the plaintiff complained about in the Local Court was loss of some property which she said had been in the room she occupied under the rental agreement with the defendant plus other unparticularised damages resulting from her occupation being terminated.

The claim in the Local Court, on the face of it, was a very minor inconsequential dispute and there would be no justification for granting leave to review an interlocutory decision in relation to it in this Court in the absence of any point of principle.

Accordingly: