Islam v Raine & Horne Corp

1. [1]

   HIS HONOUR: By notice of motion filed on 10 August 2023, Edmund Angus Raine and Celeste Kopps seek orders in the alternative that the proceedings be dismissed or that the statement of claim filed on 19 June 2023 be struck out. For the reasons that follow, I consider that the proceedings should be dismissed.

Background

1. [2]

   Md Rajibul Islam is a former director and shareholder of Australian Real Estate Relation Pty Ltd (in liquidation). Mr Abu Walid Ratul is the other former director and shareholder of the company, which operated as a Raine & Horne franchisee until 30 November 2022.

2. [3]

   Mr Raine is the executive chairman and sole director of Raine & Horne Pty Ltd. Ms Kopps is an employee of Raine & Horne and was the business development manager for the Ingleburn area. The named first defendant does not exist, either as a company, registered business name or other form of legal entity.

3. [4]

   Mr Islam and corporate entities purportedly under his control have commenced other related proceedings against the Mr Raine and Ms Kopps in both the Equity and Common Law Divisions of this Court.

4. [5]

   The proceedings in the Equity Division were dismissed by Black J on 21 June 2023: In the matter of Raine & Horne Corporation [2023] NSWSC 706. The proceedings in the Common Law Division were the subject of summary dismissal and strike out motions that were heard by Campbell J on 25 July 2023. His Honour is yet to deliver his judgment.

5. [6]

   Various other proceedings commenced by Mr Islam in relation to the affairs of the company have been dismissed or struck out: see Islam v Ratul (District Court of NSW, Andronos SC DCJ, 31 May 2023, unreported); Islam v UI Karim [2023] NSWSC 717 and Islam v Mitry Lawyers Pty Ltd [2023] NSWSC 700.

6. [7]

   On 22 August 2023, Mr Ratul filed a summons in the Equity Division seeking, amongst other things, an order pursuant to s 8 of the Vexatious Proceedings Act 2008 that Mr Islam be prohibited from instituting any proceedings in New South Wales against certain named persons and entities, including Mr Ratul, relating to the company. Those proceedings are listed again on 20 November 2023.

7. [8]

   These collateral events are, however, to a large extent beside the point of the present application, which directs specific attention to the terms of the statement of claim on the one hand and the question of whether Mr Islam has any prospects of reformulating any viable claim if given the opportunity to do so on the other hand.

The statement of claim

1. [9]

   Mr Islam’s statement of claim is a curious document. It is apparently in identical terms to the statement of claim comprehensively dealt with by Black J on 21 June 2023.

2. [10]

   It became clear in the course of the proceedings before me that Mr Islam feels considerably aggrieved by the events that have unfolded in his life. Not the least of these is the loss of his formerly successful real estate franchise that he conducted for some years. Mr Islam expounded these difficulties at some length, even though they were not directly related to the application to which he was responding. I note these matters simply to emphasise that Mr Islam has what he considers are authentic complaints, even if they are not reflected in the terms of his pleading.

3. [11]

   For example, the statement of claim contains paragraphs in general and florid terms, such as the following:

4. [12]

   Passages like this are curiously repeated in identical or cognate terms at various locations in the statement of claim. They are invariably general, never particularised and conspicuously devoid of any content. They are given no context in terms of date, physical location or specific legislative provisions and the physical acts said to constitute the exploitative conduct or deceptive practices that are alleged are not described.

5. [13]

   It is clear to the point of demonstration that the statement of claim commencing these proceedings is vexatious, that it fails to disclose a reasonable cause of action, that it has a tendency to cause prejudice, embarrassment and delay and that it is otherwise an abuse of process. The commencement or maintenance of proceedings in effectively identical terms to those dismissed by his Honour Black J is a cardinal example of such abuse. I adopt with respect the reasons for judgment of his Honour, where presently relevant, but at [11]-[19] in particular, in the matter to which reference has been made earlier.

6. [14]

   In forming this view, in accordance with UCPR 13.4(2), I have taken account of the matters referred to in the affidavits of Chantelle Hammond affirmed 10 August 2023 and 11 September 2023. I also note in this respect that none of the affidavits affirmed by Mr Islam and read by him in response to this application contains any material that is relevant to its disposition by me.

7. [15]

   In these circumstances I consider that the proceedings should be dismissed with costs. In that last respect, counsel for the applicants on the motion has adverted to the making of an order for indemnity costs. Three things should be said about that. First, the fact that proceedings are summarily dismissed does not automatically carry with it the basis for such an order, even in a case that is as clear as the present case. Secondly, some evidence of circumstances, such as but not limited to an unaccepted offer of compromise, would ordinarily be required before a special costs order were made. Thirdly, despite passing reference to an indemnity costs order, there was no oral argument on the issue before me and Mr Islam certainly has not addressed it in his submissions or otherwise. In the circumstances, if the applicants on the motion were minded to press for such an order, they should arrange with my Associate to relist the matter at a time convenient to Mr Islam and the Court for that purpose.