Qasim v Kekatos Lawyers

1. [1]

   Dr Qasim brought these proceedings in May 2021, seeking to appeal the whole of a decision of the Local Court given on 15 April 2021, refusing her application to have a default judgment set aside. Her motion was denied by Darcy LCM and a fixed sum costs order made against her.

2. [2]

   It emerged at the hearing of the appeal that Dr Qasim had not joined as a party the plaintiff who brought the proceedings in the Local Court, The Owners Strata Plan 61034. It had brought those proceedings to recover outstanding levies and other debts it claimed Dr Qasim owed in relation to a property at Old Bar, which she owns. She did not defend the claim, with the result that default judgment was entered against her in January 2021.

3. [3]

   It also emerged that as the result of a misunderstanding, in these proceedings Dr Qasim had also not filed or served the affidavits on which she wished to rely, to establish the grounds of appeal which she advanced. She had relied on those affidavits in the Local Court, when she sought to have the default judgment set aside and in these proceedings, complained that her Honour had not read or properly understood them.

4. [4]

   I refused Dr Qasim’s adjournment application, in order that she could obtain those affidavits to tender, being satisfied that the other parties who had appeared had to be heard. That was because their cases were that the proceedings had to be dismissed against each of them, none of them having been a party to the proceedings below and having no interest in the appeal.

5. [5]

   Rule 50.5 of the Uniform Civil Procedure Rules 2005 (NSW) requires that persons who are directly affected by the relief sought in the appeal or who are interested in maintaining the decision under appeal, must be joined as a defendant. On the evidence it was thus The Owners Strata Plan 61034, which should have been named as a party, not the named defendants.

6. [6]

   Having heard those defendants I was satisfied that none of them were proper parties to these proceedings and ordered that the proceedings against them be dismissed, they having been improperly joined. But I made orders for service of a motion and other documents on The Owners Strata Plan 61034, seeking leave to join it as a party to this appeal.

7. [7]

   These are the reasons for those conclusions and for the costs orders I am satisfied should be made against Dr Qasim.

The Local Court proceedings

1. [8]

   Dr Qasim did not dispute that it was in August 2018 that The Owners Strata Plan 61034 had pursued a claim in respect of the property in the Local Court. She was then represented by Kekatos Lawyers. Judgment was entered for The Owners in March 2019, after which Dr Qasim engaged Alex Ilkin to act for her. A garnishee order was made in February 2021.

2. [9]

   The Owners Strata Plan 61034 pursued a second statement of claim in the Local Court in December 2020, seeking to recover other outstanding strata levies and debts from Dr Qasim. It was in those proceedings that default judgment was entered in January 2021, which Dr Qasim unsuccessfully sought to have set aside.

3. [10]

   The parties to those proceedings were also The Owners Strata Plan 61034 and Dr Qasim, although Dr Qasim had named Mr Davidson as a party interested in her motion. He denied any interest and Darcy LCM made orders in his favour.

Dr Qasim’s appeal

1. [11]

   Dr Qasim is unrepresented in these proceedings. It is pertinent to note that her summons pleads:

2. [12]

   The summons names ten defendants:

   1. (1)

      Kekatos Lawyers;

   2. (2)

      Alan Davidson;

   3. (3)

      Paula Graham (treasurer);

   4. (4)

      Strata Professionals: Mr Andrew Thompson;

   5. (5)

      Mitchel Spiteri;

   6. (6)

      Heather Mitchell;

   7. (7)

      Tony Maher;

   8. (8)

      Pauline Wright;

   9. (9)

      Alex Ilkin; and

   10. (10)

       GTC Lawyers.

3. [13]

   There was no appearance for Mr Spiteri, Mr Ilkin or GTC Lawyers.

Dr Qasim’s affidavit and submissions

1. [14]

   On 7 September Dr Qasim was ordered to file an affidavit annexing the pleadings and transcript of the proceedings in the Local Court on 5 May 2021, as well as written submissions. It is convenient to note that Dr Qasim’s short affidavit provided:

2. [15]

   Annexed to the affidavit were various communications, including to the Law Society and NCAT; a tax invoice for a claim sent to Dr Qasim by AM & KL Davidson Pty Ltd in June 2017 for cleaning and other charges; a June 2017 works invoice for cleaning signed by Mr Spiteri; and the transcript of proceedings before Darcy LCM on 15 April 2021. But the affidavits on which she wished to rely were not annexed.

The Local Court proceedings

1. [16]

   The transcript of the April 2021 proceedings establishes that Mr and Mrs Davidson appeared because they had been named by Dr Qasim as other persons affected by her motion. The Owners Corporation was then represented by Mr Maher, Mr Brigden appeared for Mr and Mrs Davidson and Dr Qasim appeared unrepresented.

2. [17]

   Darcy LCM noted that Dr Qasim had not filed a defence, nor any affidavit which explained why she said that she was not liable to pay the claimed levies. Her Honour explained that in order for the Court to consider setting aside the default judgment, she had to be satisfied that sufficient cause had been shown that a bona fide ground of defence existed. There also needed to be an adequate explanation of why the defence had not been filed.

3. [18]

   In her submissions Dr Qasim referred to proceedings which she had taken in the Supreme Court. Her Honour observed that there was nothing in the material before her, which could interfere with the course which the matter had taken in the Local Court, with the result the default judgment which had been entered.

4. [19]

   Dr Qasim also said that she had sought legal advice from very senior legal people, as Mr Maher had suggested and that her position was that she needed further time to put material together, to satisfy the Court that the default judgment should be set aside.

5. [20]

   An adjournment was opposed, The Owners submitting that Dr Qasim had been on notice of what was required to set aside the default judgment, since advice given by letter of 7 December 2020.

6. [21]

   Orders dismissing the motion were thus pressed, as well as orders removing Mr and Mrs Davidson as persons interested in the motion. That was because they were not parties to the proceedings and the ill-conceived basis on which they had been identified as having an interest in the motion, namely, being targets of a foreshadowed cross claim.

7. [22]

   Dr Qasim refused to agree to the removal of Mr and Mrs Davidson, advising that “I’ll take it further to a higher court”. She also explained further the legal advice she had obtained; said “that these people can’t bully and rip off owners with their tactics”; that she did not understand that the defence was separate from her affidavit; that she was going to a higher court because of the distress she had been caused; that she had given Mr Maher many opportunities to clarify, but he was acting with others and had a conflict of interest; that the Davidsons had turned her own tenants against her; that they were ripping people off in the name of the Law Society: that the levies had never been raised or sent by the Law Society; that the whole thing was misconceived; that she had used three lots of solicitors who did absolutely nothing; that she had told them about the Law Society and the defective statement of claim and to put on a motion, but they had not done their job.

8. [23]

   Dr Qasim also said that she wouldn’t mind writing another defence, if that clarified the situation, but she did not accept that her motion was defective. She also claimed that the Davidsons were the real culprits in the scam; that she had provided evidence of their underhanded behaviour; and that they should not be onsite managers. Strata Professionals were also not doing their job and should not be holding meetings to raise money for the onsite managers.

9. [24]

   Her Honour finally gave a short oral decision, holding:

10. [25]

    As a result, her Honour also ordered the removal of the stay which had earlier been granted, pending determination of Dr Qasim’s motion and made a costs order, which was also opposed, holding:

Dr Qasim’s case

1. [26]

   Dr Qasim filed several separate written submissions, as well as making oral submissions resisting the cases which the defendants, other than finally, Ms Mitchell, pressed.

2. [27]

   Amongst other things Dr Qasim stood by statements which she had made in the Local Court, including that Mr Maher had a proven conflict of interest. She also said that her foreshadowed crossclaim, to which she repeatedly referred, was legitimate, for reasons which she explained, some of them scurrilous and not necessary further to repeat.

3. [28]

   Dr Qasim also responded orally to each case pressed and so I will deal with the defendants separately.

Ms Graham

1. [29]

   Ms Graham appeared in person seeking to be removed as a party having no interest in them and not having been a party to the Local Court proceedings.

2. [30]

   Dr Qasim opposed such an order, despite describing Ms Graham as being a dear friend against whom she had no grievances. Dr Qasim explained that she had spoken to Ms Graham about the involvement of the Law Society and the appointment of McDermott Lawyers and Mr Turner and why they had been paid from a trust account. She had also spoken to the Law Society, which denied involvement in the appointments. Thus, in her view Ms Graham had to attest and address inconsistencies, “in the interest of the general public”.

3. [31]

   Orally Dr Qasim submitted that Ms Graham was the main person who “has been asking other owners of bankruptcy and setting up of levies” and was asking for execution of “these defective statements of claim”.

4. [32]

   It is unnecessary to further explain the misconceived submissions Dr Qasim advanced.

5. [33]

   These proceedings concern only the appeal from the decision of the Local Court, dismissing Dr Qasim’s motion. They are not concerned with the pursuit of an investigation into the history of alleged wrongs which Dr Qasim is interested in pursuing.

6. [34]

   Ms Graham’s position as treasurer, I assume of the strata committee of the owners corporation which is constituted as a body corporate under s 8 of the Strata Schemes Management Act 2015 (NSW), although this was not established by any evidence, could give her no interest in Dr Qasim’s appeal.

7. [35]

   Accordingly, I was satisfied that the proceedings brought against her had to be dismissed.

8. [36]

   Ms Graham did not seek any order for costs.

Mr Davidson

1. [37]

   There was no issue that Mr Davidson and his wife are the onsite managers of the property.

2. [38]

   Mr Davidson sought an order for his removal as a party under r 6.29 of the Uniform Civil Procedure Rules, which permits removal of a party who has been improperly or unnecessarily joined. His case was that he had already been improperly joined to the motion in the Local Court, which had been dealt with there and that he had no interest in this appeal either.

3. [39]

   Dr Qasim also opposed that order, contending amongst other things that Mr Davidson was a legitimate defendant because he is liable for financial hardship and costs inflicted on all owners as the result of a scam of raising levies “perpetuating to be from the law society’s involvement election of McDermott layers and Mr Barry Turner in Queensland” in Oct 2021.

4. [40]

   Dr Qasim also claimed that money paid to McDermott lawyers involved a scam and foreshadowed that she proposed to bring a cross claim against Mr Davidson.

5. [41]

   I was also satisfied that the proceedings against Mr Davidson had to be dismissed, he also not having been a party to the proceedings in the Local Court and Dr Qasim not having established by her affidavit or submissions that he had any conceivable interest in a dispute over outstanding strata levies and other debts, let alone Dr Qasim’s appeal against the dismissal of her motion in the Local Court.

6. [42]

   The usual costs order under the Uniform Civil Procedure Rules is that costs follow the event.

7. [43]

   Dr Qasim opposed any costs order being made in favour of any defendant who sought such orders, because they had contributed to the situation and because she would be pursuing a cross claim against them all.

8. [44]

   That is not a proper basis for refusing a costs order. It was the result of decisions which Dr Qasim made that Mr Davidson was wrongly joined as a party to these proceedings, despite what had been concluded in the Local Court. The exercise of the cost’s discretion is compensatory, not punitive and flows from Mr Davidson’s success in obtaining an order over Dr Qasim’s objections.

9. [45]

   In those circumstances it is just that Dr Qasim be ordered to pay Mr Davidson’s costs, as agreed or assessed.

Ms Wright

1. [46]

   Ms Wright was also not a party to the Local Court proceedings. There is no issue that from 1 January 2017 to 31 December 2017 she was the President of the Law Society of NSW. Neither she nor the Society were involved in the Local Court proceedings.

2. [47]

   Dr Qasim also opposed an order removing Ms Wright as a party. In her written submissions Dr Qasim referred to the Law Society, which she claimed had never been involved in the appointment of McDermott Lawyers or Mr Barry Turner, as claimed by the secretary Ms Mace. Perplexingly, she also submitted:

3. [48]

   In her May 2021 affidavit Dr Qasim also deposed that Ms Wright had engaged in conduct liable for prosecution under s 319 of the Crimes Act 1900 (NSW). It is concerned with acts or omissions intended to pervert the course of justice. No basis for such a serious allegation has been advanced.

4. [49]

   Orally Dr Qasim submitted that while perhaps the correct forum was a cross claim. She also said that part of the affidavit she had relied on in the Local Court had raised Ms Wright’s involvement and the many emails she had sent her, to which she had not responded.

5. [50]

   None of this established that Ms Wright was a proper party to this appeal. It followed that the proceedings against Ms Wright also had to be dismissed. She was not a party to the proceedings in the Local Court and what Dr Qasim advanced did not establish that Ms Wright had any conceivable interest in a dispute over outstanding strata levies and other debts, let alone in this appeal.

6. [51]

   In the result a costs order must also be made in favour of Ms Wright.

Mr Maher

1. [52]

   Mr Maher was also not a party to the proceedings in the Local Court, where he had appeared to represent the Owners Strata Plan 61034. His case was that so far as he was concerned, the proceedings were frivolous, vexatious and an abuse of process and thus ought to be dismissed under r 13.4 of the Uniform Civil Procedure Rules.

2. [53]

   Dr Qasim also opposed Mr Maher’s application, submitting that he had had a conflict of interest and had not been transparent in disclosing simple matters she had asked, with the result of a waste of Court time. He had also pursued other owners losing their homes, because of the wrongdoing happening in the strata scheme.

3. [54]

   Again, I was satisfied that the proceedings brought against Mr Maher had to be dismissed. He was also not party to the proceedings in the Local Court and what Dr Qasim advanced by her affidavit and submissions was incapable of establishing a basis upon which it could be concluded that he had any interest in this appeal.

4. [55]

   Mr Maher sought an indemnity costs order in his favour, there being no prospect of any chance of success against him on this appeal, as Dr Qasim should have known if properly advised: Baulderstone Hornibrook Engineering Pty Limited v Gordian Runoff Limited (No 2) [2009] NSWCA 12 at [4]. Such orders may be made when proceedings are imprudently or unreasonably taken.

5. [56]

   It is settled that indemnity costs are usually ordered when there is some relevant unreasonable action of misconduct in connection with the proceedings: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11. I do not consider that there has been such misconduct.

6. [57]

   Dr Qasim’s joinder of Mr Maher and resistance of the order removing him as a party was certainly misconceived. But it should be appreciated that she is unrepresented and believes that he had an interest in the appeal, which she pursues not only to overturn the Local Court’s decision, so that she can defend the claim brought against her, but so that she can pursue a cross claim against Mr Maher and others.

7. [58]

   Dr Qasim is misguided in thinking that this provided a basis for joining Mr Maher as a party to the appeal, but I am satisfied does not justly provide a basis for an indemnity costs order.

8. [59]

   In the result a costs order must be made in favour of Mr Maher on the usual basis.

Ms Mitchell

1. [60]

   Ms Mitchell’s case was also that she had not been a party to the Local Court proceedings, had no interest in the appeal and that until served with the summons in these proceedings, she was not even aware of the Local Court proceedings and knew nothing of the matters addressed in the summons. She asked the proceedings brought against her be dismissed, no error of law having in any event been established by the appeal and orally, that they should be struck out against her.

2. [61]

   Ms Mitchell acknowledged that she was an owner in the building; that Supreme Strata acts as managing agent, so that expenses incurred in relation to the common property are incurred on its instructions. But said that she had no responsibility for the common property.

3. [62]

   In her 19 July submissions Dr Qasim claimed that Ms Mitchell had been involved in misappropriation, unruly conduct and harassment for over a decade. That she said, was her argument with Ms Mitchell, although she also there referred to proceedings which she claimed Ms Mitchell had commenced in this Court in 2010, as well as CTTT proceedings taken in 2004. She also claimed that Ms Mitchell was liable for costs incurred over a decade, as well as the “vegetative state” of the building, due to her antisocial behaviours and abuse of a position of trust.

4. [63]

   Dr Qasim also foreshadowed that she would seek compensation and reinstatement of the 2010 proceedings, “to regain the glorious look of the building”.

5. [64]

   These submissions supported the case which Ms Mitchell advanced. These proceedings concern only the appeal from the Local Court, not earlier proceedings in the CTTT or this Court, nor Dr Qasim’s articulated ongoing concerns with Ms Mitchell’s alleged conduct.

6. [65]

   Dr Qasim finally did not object to orders dismissing the proceedings against Ms Mitchell being made, although she did not explain why, with the result that I made that order, by consent.

7. [66]

   Ms Mitchell still sought an order for costs, which Dr Qasim opposed.

8. [67]

   I am satisfied that the circumstances in which Dr Qasim’s late concession was made, provide no just basis for a departure from the usual costs order in Ms Mitchell’s case.

Kekatos lawyers

1. [68]

   The Kekatos’ position was like that of the other defendants. Mr Jim Kekatos deposed that he was also not a party to the proceedings from which this appeal arose and thus also asked that the proceedings brought against him be dismissed and finally, that orders would be made under r 50.5 and/or r 6.29 of the Uniform Civil Procedure Rules.

2. [69]

   Mr Kekatos’ affidavit annexed various correspondence. On his evidence he had received instructions from Dr Qasim in relation to Local Court proceedings in September 2018. Further particulars of the claim were sought in October. A response and amended statement of claim were later provided and a settlement arrangement proposed.

3. [70]

   Dr Qasim then instructed him not to accept service of that pleading. He did not enter an appearance in the proceedings, her instructions being withdrawn after fees were not paid, with his retainer coming to an end in December 2018.

4. [71]

   Dr Qasim still opposed the orders sought being made, despite in her written submissions having conceded that Mr Kekatos was not a party to the Local Court proceedings.

5. [72]

   In her affidavits Dr Qasim referred to failures to respond to affidavits she had served on Mr Kekatos and questions she had asked of him in the past, as well as failing to follow her instructions about ongoing harassment and orders made contrary to instructions, so that perpetrators were brought to justice. She also alleged conduct liable for prosecution under s 319 of the Crimes Act.

6. [73]

   Again, nothing that Dr Qasim advanced could result in the conclusion that Mr Kekatos was a proper party to this appeal. He, too, was not party to the proceedings in the Local Court and simply had no conceivable interest in this appeal. At one point she observed that “perhaps a cross summons would be a better way of obtaining answers from them”, which underscored the misconceived basis on which the proceedings were brought against Mr Kekatos and others.

7. [74]

   In the result orders dismissing the proceeding against Kekatos Lawyers, with a costs order in Mr Kekatos’ favour, also had to be made.

Mr Thompson

1. [75]

   There was also no issue that Mr Thompson was not a party to the Local Court proceedings. He echoed what the other parties had submitted and also sought to be removed as a party to the proceedings.

2. [76]

   Dr Qasim also opposed that order, explaining that she had talked to Mr Thompson because he was the main communicator for the Law Society and had failed to provide a brief or respond to her emails. She also considered that a cross summons might be the best option, but there is no question that one had not been brought, before the proceedings were dismissed.

3. [77]

   In the result I was also satisfied that orders dismissing the proceedings against Mr Thompson had to be made. He did not press an order for costs.

Orders

1. [78]

   For the reasons given, having ordered that the proceedings against them be dismissed, I also order that Dr Qasim pay the costs, as agreed or assessed, of:

   1. (1)

      Kekatos Lawyers;

   2. (2)

      Alan Davidson;

   3. (3)

      Heather Mitchell;

   4. (4)

      Tony Maher; and

   5. (5)

      Pauline Wright.