Interstructure Pty Ltd v Kaldawi & Klarica [2002] VCAT 1492

Victorian Civil and Administrative Tribunal|2002-12-03|Before: Mr P

Mr H. Aizen of Counsel instructed by Mr P. Egan, Solicitor

1. The following proceedings are struck out - 704/2002; 705/2002; 706/2002; 707/2002; 708/2002; 713/2002; 714/2002; 715/2002; 716/2002; 717/2002; 742/2002; 743/2002; and 744/2002. The accompanying reasons for decision shall stand as if provided in each of these files. A copy of such Reasons I direct must be placed on each such file.

2. The counterclaim in this proceeding is struck out. Leave is given to re-plead. The Principal Registrar is to give consideration to declining a new filing fee. Any new counterclaim which is filed must be served on all parties. A new counterclaim may only be filed and served after, 1 February 2003 if there is compliance with the orders in paras 4, 5 and 6.

3. This proceeding and proceeding D706/2002 are to be heard and determined as the same time.

4. I order the First Respondent (Robert Kaldawi) to pay costs of $1,000.00 each to the Applicant (Interstructure) and to Mira Constructions Pty Ltd and to Nettrom Pty Ltd (a total sum of $3,000). Stay until 1 February 2003.

5. I order the First Respondent (Rober Kaldawi) to pay costs of $500 for Compass Pools Vic Pty Ltd. Stay until 1 February 2003.

6. I order the First Respondent (Robert Kaldawi) to pay costs of $2,000 to NY Investments Pty Ltd. Stay until 1 February 2003.

7. I adjourn this proceeding and proceeding D706/2002 to a directions hearing after 1 February 2003 to be notified to the parties.

1. I have before me the following matters - D633/2002; 704/2002; 705/2002; 706/2002; 707/2002; 708/2002; 713/2002; 714/2002; 715/2002; 716/2002; 717/2002; 742/2002; 743/2002; and 744/2002. In all there are 14 separate proceedings. However all, apart from 633/2002 and 706/2002, name as the Applicant one single person - (Dr) Robert Kaldawi.

2. In fact all those proceedings naming him as Applicant have been transferred from the Civil Claims List.

3. The files in all proceedings arise out of factual and other disputes occurring at the premises of Dr Kaldawi and his wife Irena Kaldawi at which it is alleged domestic building works are being or have been carried out.

4. Proceeding D633/2002, however, is a matter issued in the Domestic Building List in which they, and Luka Klarica, are being sued. Related to that proceeding is 706/2002 where Klarica is countersuing Inter Structure Pty Ltd which is the Applicant in 633/2002.

5. Application is made by all the parties who are respondents (except for one who did not attend) in the transferred proceedings to strike them out as being an abuse of process.

6. That application I view as one made under s75 of the VCAT Act 1998.

7. Before dealing with the application Dr Kaldawi asked me to adjourn so that he could get legal advice. I declined to do so. He said he had a lawyer assisting him. In fact he had a meeting with a barrister (Mr K. Oliver) scheduled for the end of the week. For some reason or other, though, he had not seen fit to have him attend. It was a choice made by him. Moreover, all of the transferred proceedings, apparently, were issued without the benefit of legal advice. Dr Kaldawi, apparently again, was resourceful enough to know what he was doing on each of those successive occasions. He appears to have enlisted a lawyer's services only in D633/2002. But even the counterclaim there he has done himself. It is done very amateurishly. I gained a clear impression that he was not unfamiliar with legal ways or with operations of the Tribunal.

8. Dr Kaldawi also intimated he was taken by surprise by the strike out applications. I cannot agree. I am quite satisfied he was sent Notices of Directions hearings (he even acknowledged this) and in those, if he read them, he is notified that the Tribunal may deal with any legal questions which may be raised at the directions hearing. A strike out application of this nature it seems to me is properly described as one such legal question, namely, whether there is any abuse of process involved in the transferred proceedings. That is a legal question. I reject a view, therefore, that Dr Kaldawi is in any position to say he was not given any notice of this as a possibility. A lawyer, acting for him, as he or she was in the Domestic Building matter, would have known this. That lawyer, though, it seems did not realize they needed to attend, so I am told. This was reported to me by Dr Kaldawi after he had spoken to him or her. I am unable to suggest any reason(s) for this.

9. The application under s75 therefore, proceeded, as it should have done.

10. I am satisfied I should act under s75 to strike out the transferred proceedings as I consider in relation to each of these matters that there is a clear abuse of process under s75(1)(b). It simply cannot be that a party can divide up claims in this way. He has issued 13 sets of proceedings in all. The business of courts and the Tribunal would halt if for every claim a separate proceeding was launched.

11. Aside from that, however, or further, I am not satisfied that as regards all or many of the respondents in the transferred proceedings that there is or are any cause(s) of action known to law in any event. I listened carefully to Dr Kaldawi's explanations. These were not given on oath. But his explanations seem to me to be ill-founded, in most ways, in law. It is impossible, however, to separate out that or those cause(s) of actions which are or may be maintainable from those (if any) which are not. The whole episode of the transferred proceedings seems contrived (perhaps to attract lower filing fees in civil claims - $35.00 as opposed to $250.00 per application in domestic building ). Certainly it does not seem to be based on any legal advice which is sound. I cannot accept that any Registry member "advised" Dr Kaldawi to do this as he seemed to be suggesting sometimes.

12. Each of the transferred proceedings is struck out under s75(1)(a) or (b) as being abuse of process or as being misconceived.

13. I propose to continue proceedings D633/2002 and 707/2002. They stand in a different category. I direct that they be heard and determined together.

14. As regards, however, the counterclaim, so called, in D633/2002 I shall strike that out also under s75(1)(a) or (b). It is in no way a clear statement of the claim(s) sought to be raised counter to the claims being made. It is poorly expressed in such a way that a party could not possibly know in any realistic way the nature of the allegations being made against it. Further it adds as parties persons not joined in the proceedings. I note that although a $500 filing fee has been paid, the so-called counterclaim has not been served on all actual parties.

15. In striking out the counterclaim I give leave, if needed, to the First Respondent to file and serve another, done in proper form. I direct the Principal Registrar to give consideration to filing any new counterclaim without a fee having to be paid over again. Any new counterclaim may only be filed and served after 1 February 2003 and then only if there is compliance with costs orders.

16. I cannot stop Dr Kaldawi from filing new proceedings in the Domestic Building List. Any that are filed, however, must be accompanied by the proper fee. If he wishes to join a party to a proceeding (such as in D633/2002) he must make application supported by affidavit(s). Any new proceedings begun by him relating to the facts of the case I direct must be heard and determined together and at the same time as D633/2002.

17. Application is made by some of the respondents in the transferred proceedings for costs. I am satisfied I should order, strictly, compensation under s75(2) of the Act. In the case of Inter Structure Pty Ltd, Mira Constructions Pty Ltd and Nettrom Pty Ltd I order Dr Kaldawi to pay the sum of $1,000.00 each (a total of $3,000.00). That figure seems very reasonable in respect of each given that each was separately represented by (Senior) Junior counsel and instructing solicitor. I note that in a fax dated 29 November Dr Kaldawi indicated as regards the latter two (Mira and Nettrom) that he did not require them to attend. It is not, however, for him to countermand notices of the Tribunal directed to them, if that is what he was doing. To discontinue against them, in any event, would require leave of the Tribunal.

18. I allow a sum of $500 to Compass Pools Vic Pty Ltd. A Mr Smith, legally qualified person, appeared on its behalf but not as lawyer as such. Yet s75(2) is not like s109. It refers to compensating a party for loss. It is not specifically directed at those who have legal representation as such. Mr Smith sought to revise the amount he was claiming (to claim $1,000) but I disallowed that. The figure of $500 though was in my view a reasonable one to claim.

19. I allow also a sum of $2,000.00 in respect of NY Investments Pty Ltd. Mr Nimmo, who later was represented by (a different) Mr Smith lawyer. Mr Smith said that he had had legal conferences with his client and Mr Nimmo and he had had to employ people on site for two days. He affirmed that this was true. I am satisfied that Dr Kaldawi did not directly challenge what he said. The sum claimed seemed reasonable to me in all the circumstances.

20. There was a question there whether I should accede to a request by Dr Kaldawi to adjourn for him to get legal advice on this last claim for costs. Again I declined to do that. One reason, re-expressed to me after he contacted the solicitor by phone, was that the solicitor did not know he had to attend or that the client needed legal representation on the day. This is a wrong-headed view if being correctly reported to me. Admittedly Dr Kaldawi was upset by what had happened but he did not impress me as unresourceful, or in reality, as unable to cope. In any event this was at the tail end of the proceedings.

21. The whole of sum of $5,500.00 is order to be paid by Dr Kaldawi in the amounts and to the parties I have mentioned. I stay payment until 1 February 2003.

22. I direct the proceedings D633/2002 and 706/2002 be re-listed for directions on a convenient date as soon as may be convenient.

At a glance

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Judgment (31 paragraphs)

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