Qasim v Owners Strata Plan 61034

The hearing in the Local Court

1. Dr Qasim's notice of motion was heard on 15 April 2021 by Magistrate Darcy. The transcript of the hearing indicated that Dr Qasim appeared by telephone and represented herself. Dr Qasim asserted that the levies "are a false premise based on the activities of the onsite manager that claim that the Law Society was involved in raising of the levies and there are a couple of sums involved with these levies that are affecting all the innocent owners".
2. Magistrate Darcy noted that no defence had been filed. Her Honour also indicated that in order to set aside the default judgment she was "required to be satisfied whether sufficient cause has been shown and a bona fide ground of defence and an adequate explanation as to why you haven't filed that defence".
3. Dr Qasim submitted that she had not filed a defence because of the filing of the "Form 3" and complained about Mr Maher (the solicitor for the Owners) not answering issues she had raised with him "for over 24 months".
4. Magistrate Darcy observed that Dr Qasim's submissions were misconceived and her arguments seemed to be relevant to other proceedings.
5. There was evidence tendered that Dr Qasim had been given notice as to what was required in order for the default judgment be set aside in correspondence that Mr Maher had forwarded to her. Magistrate Darcy expressed the view that the purported cross-claim that Dr Qasim referred to in her notice of motion was irrelevant.
6. Her Honour correctly identified the appropriate power contained in Rule 36.16 of the Uniform Civil Procedure Rules 2005 (NSW) (the UCPR) and that the relevant test was satisfaction in light of all of the circumstances that a genuine ground of defence had been identified and an explanation for not having filed a defence being proffered and accepted. This approach was entirely orthodox.
7. Her Honour finally gave a short oral decision: "In relation to the motion before the Court Ms Qasim is seeking to set aside a default judgment that was entered on 22 January this year. That was a judgment for what was said to be unpaid strata levies and associated fees. The judgment was entered after Ms Qasim failed to file a defence in respect of the statement of claim. As Mr Maher has outlined in his affidavit of 14 April 2021 and the annexures there, default judgment was entered forty-two days after the statement of claim was served and that accordingly had given Ms Qasim fourteen days above the twenty-eight days to file a defence. Ms Qasim did not file a defence and in support of the motion today she has annexed what she refers to as three affidavits, they have a number of annexures in fact one of them purports to be a cross-claim against the onsite managers, Mr Brigden is here representing their interests today. When I look at rule 36.16 of the Uniform Civil Procedure Rules, it provides that the Court may set aside or vary a Judgment that has been entered in default, but I need to consider principles which include looking at the whole of the circumstances in deciding whether or not sufficient cause has been shown; if there is an adequate explanation for the default, those are the most relevant matters to consider. I look at Ms Qasim's evidence that has been filed and really it is asserting untoward conduct by Mr Maher which certainly on my reading of the evidence there is no basis for that. Mr Maher has very fairly communicated with Ms Qasim on a number of occasions, he has suggested that she obtain independent legal advice which she tells me she has had very competent legal advice in respect of the matter but there is simply nothing on the material that Ms Qasim has filed which would set out that she has any defence in relation to the matter, nor does it adequately explain why no defence was filed within time. She talks about filing a document that she refers to as a Form 3 in the Supreme Court. The evidence that has been annexed to Mr Maher's affidavit outlines that the Supreme Court responded to the parties on 4 February advising Ms Qasim that her application would appear to be misconceived, so she has been on notice since 4 February that nothing was ongoing in the Supreme Court and despite that, there is still no affidavit before the Court which would outline any defence that she has to the claim. In all of the circumstances, Ms Qasim has not satisfied me that it is appropriate to set aside default judgment and in all of the circumstances I decline to do so and THE MOTION IS DISMISSED."

Proceedings in this Court

1. The summons filed on 14 May 2021 appears to have been prepared without legal assistance. It pleads: "1. Leave to appeal from the whole of the decision below. 2. Appeal allowed. 3. Judgement #order (number 1 & 2) of the court below be set aside. 4. The entire decision of the plaintiff seeks in place of the decision of the court below be quashed. 5. [Refund of all monies illegally obtained, by SP 61034, under the false pretence of law society's engagement. There was none. It's a scam.] A real scam. Needs to be investigated by appropriate authorities, ASIC, or a criminal court] 6. The perpetrators pay for the losses incurred by owners who have lost their homes to bogus and defective SOCs & money launderers. The lost homes are to be returned to owners within 3-6 months or face criminal charges forthwith. 7. The magistrate in the court below failed to read evidence / affidavits hence is liable for judicial review & or review of her role as part of coastal community] 8. The on-site managers pay for the losses incurred by the plaintiff, by engaging in antisocial behaviours of turning the plaintiff's tenants Mitchell Spiteri & Adam Mannes into petty thieves and to commit perjury as was the case with Mitchell Spiteri. [RT 18 / 33929, RT 18 / 33929, RT 18 / 34000] 9. Mr Steven Hausfeld must be cross examined over his procedural irregularities incurred by the plaintiff and encouraged perjury against good practice of law relating to defendants, Mitchell Spiteri & Adam Mannes. Mr Steven Hausfeld is a known perpetrator in the region of Manning, Greater Taree area who engages in conduct that denies natural justice to many real estate agents, which also include landlords not just the plaintiff. Mr Steven Hausfeld is liable for prosecution under s 319 of Crimes Act 1900. He needs judicial review over his alleged procedural irregularities, unacceptable manners of throwing files at real estate agents, unprovoked aggression and unruly behaviours. 10. Mrs Heather Mitchell is to provide all receipts as requested by the plaintiff through her agent Supreme Strata & others with an affidavit. She cannot abuse the trust account as she had done in the past, engaging in antisocial behaviours for over a decade. She is liable and responsible for the vegetative state the building is currently in. Refund of all monies to plaintiff illegally obtained under the false pretence of owners' corporations. [> last 10 years] owners of units 1 & 2 past & present file all evidence & engineering reports for public safety within 28 days of being served]. 11. All defendants and co-defendants to file affidavits within 28 days of being served."
2. The summons named ten defendants: (1) Kekatos Lawyers; (2) Alan Davidson; (3) Paula Graham (treasurer); (4) Strata Professionals: Mr Andrew Thompson; (5) Mitchel Spiteri; (6) Heather Mitchell; (7) Tony Maher; (8) Pauline Wright; (9) Alex Ilkin; and (10) GTC Lawyers.
3. On 19 October 2021 Schmidt AJ heard argument from various of the named defendants complaining that they had been improperly joined. Schmidt AJ was satisfied that none of them were proper parties to the proceedings and the proceedings against each of them were dismissed with costs ordered to be paid by the plaintiff for those defendants who had incurred costs. Her Honour also made orders for service of a notice of motion and other documents on the Owners, and for Dr Qasim to seek leave to join the Owners as a party to the appeal: Qasim v Kekatos Lawyers [2021] NSWSC 1366.
4. On 16 March 2022 Justice Dhanji dealt with an application by Dr Qasim which included, amongst other things, that the proper defendant (the Owners) be joined as defendant to the proceedings. The Owners did not oppose the joinder: Application of Qasim [2022] NSWSC 302.
5. On 9 May 2022 the Common Law Registrar fixed a hearing date for the appeal - 27 October 2022 - and made orders regarding documents that had to be filed and served by Dr Qasim.
6. As this order was not complied with, at a directions hearing in August 2022, the Owners indicated an intention to file a notice of motion seeking possible strike out or stay of proceedings.
7. A notice of motion to that effect was filed on 26 August 2022. It was dismissed by Campbell J on 15 September 2022: Qasim v Owners of Strata Plan 61034 (16 September 2022) on the basis that "the better approach was to let the matter proceed to a hearing as contemplated" because the necessary material identified by the Common Law Registrar's orders in May 2022 had "found its way into the file" and there was no practical problem in proceeding.
8. Dr Qasim was noted in the judgment to have assured his Honour that she would file an affidavit in conformity with the requirements of the UCPR 50.14 within 7 days. She did not do so, but did file an affidavit on 21 September 2022 in purported compliance with Campbell J's orders, naming on the cover sheet other people who were not party to the proceedings, and setting out an incomprehensible mix of assertions and appending material irrelevant to the appeal.
9. On 25 October 2022 Dr Qasim made a unilateral request by email to my chambers for an adjournment, followed by an inadequate medical certificate referring to the "need for a 3-month adjournment".
10. Despite being informed that a notice of motion and affidavit in support would have to be filed and served and failing to do so, Dr Qasim still made an oral application for adjournment at the commencement of the hearing. This was refused: Qasim v Owners Strata Plan 61034 [2022] NSWSC 1604.
11. Written submissions had been provided by Dr Qasim on the morning of the hearing which revealed a mistaken interpretation of the decision of Campbell J that it "identified and reaffirmed that the case against Dr Qasim was lacking in evidence and challenge". The submissions also asserted that the Owners were not the correct party, that the Owners have been "duped" into believing that the Law Society's involvement was legitimate and that "it has been a scam as confirmed with failure to challenge".
12. There were other frankly incomprehensible and apparently groundless assertions about other events and other people with a level of focus on asserted misconduct on the part of the solicitor for the Owners, Mr Maher.
13. Once the application for adjournment was refused Dr Qasim made oral submissions which were difficult to follow but seemed to come down to five key points: first, there was no evidence provided by the defendants to challenge her argument that there was no Law Society arbitration that had taken place as required (seemingly a reference to events in 2017 and an earlier dispute about strata levies), second, the Local Court made an error of law by not reading the evidence and not examining the issues, third, the Owners of Strata Plan 61034 was not the correct defendant to the proceedings, fourth, the judgment obtained in the Local Court was the subject of a conflict of interests and fifth, she in fact has a bona fide defence and that is that the solicitor for the Owners (Mr Maher) has failed to deal with her queries about the raising of the levies in the first place.
14. Other more inchoate assertions were made along the lines of Mr Maher having "threatened her with retaliation", (which seems to be a reference to correspondence about costs implications if she pursues unmeritorious arguments and assertions) and second, that "everything" has been a "whitewash" and that people have been tricked into believing that there was a legitimate examination by a Law Society nominee some years ago.
15. None of these arguments address the relevant considerations for leave to appeal, nor do they show any error in the decision Magistrate Darcy made in April 2021.
16. Mr Maconachie submitted that the decision of Magistrate Darcy was correct. There was no basis upon which she could be satisfied that Dr Qasim had a bona fide defence. The spurious assertions by Dr Qasim against people not party to the proceedings only highlighted the lack of merit to her position. Dr Qasim still persisted in raising spurious and irrelevant allegations against multiple strangers to the proceedings. Even in the Supreme Court she has not, in the affidavit material filed, identified anything resembling a ground of defence.

Principles and statutory matters

1. As the decision to refuse to set aside the default judgment was interlocutory in nature (see Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246; [1981] HCA 20 at 248), the avenue for appeal is s 40(2)(a) of the Local Court Act 2007 (NSW), which provides: 40 Appeals requiring leave … (2) A party to proceedings before the Court sitting in its General Division who is dissatisfied with any of the following judgments or orders of the Court may appeal to the Supreme Court, but only by leave of the Supreme Court - (a) an interlocutory judgment or order, (b) a judgment or order made with the consent of the parties, (c) an order as to costs.
2. Section 41(1) of the Local Court Act further provides: 41 Determination of appeals (1) The Supreme Court may determine an appeal made under section 39 (1) or 40 - (a) by varying the terms of the judgment or order, or (b) by setting aside the judgment or order, or (c) by setting aside the judgment or order and remitting the matter to the Local Court for determination in accordance with the Supreme Court's directions, or (d) by dismissing the appeal.
3. The appeal is by way of rehearing: Supreme Court Act 1970 (NSW) s 75A(5). This Court has the same powers and duties as the court below: Supreme Court Act 1970 (NSW) s 75A(6). This Court should have regard to the conclusions of the Magistrate, but should reach its own conclusions and has options under s 41 as to the way it should deal with the issues raised.
4. This Court should not overly parse and pick over the reasons of the learned Magistrate. Appropriate allowance should be given to the pressures under which magistrates are placed by the volume of cases coming before them: Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Limited (2006) 67 NSWLR 402; [2006] NSWSC 343 at [15]; Achuthan v Coats (1986) 6 NSWLR 472 at 479A, 485C-D; Fantakis v Local Court of New South Wales [2020] NSWSC 931 at [25].

Decision

1. The reasons comprise a short and pragmatic judgment embedded in the transcript of the day, in a no doubt busy court list. They are certainly sufficient to deal with the issues presented and they are undoubtably correct.
2. None of the assertions in the summons, to the extent the assertions in it can be understood, provide any basis to conclude that there was any error on the part of Magistrate Darcy in the way she approached and determined the issues before her.
3. Having myself considered the evidence presented, and in particular the (ongoing) absence of any legitimate defence to the claim for unpaid strata levies, I have concluded that the appeal is utterly hopeless and so leave to appeal must be refused.
4. I accept the submissions made by Mr Maconachie on behalf of the Owners that there was no error, legal or otherwise, in the decision of the Magistrate.
5. A significant amount of this Court's time has been taken up dealing with undisciplined, spurious and confusing allegations, applications and arguments made by Dr Qasim. Unnecessary costs have been incurred. There is reference in Mr Maconachie's written submissions to a request that the Court consider awarding indemnity costs to the Owners.
6. Any application for indemnity costs should be the subject of written submissions of no more than two pages, to be provided to chambers by email within 7 days and any submissions in response by Dr Qasim, within 14 days.

Orders

1. I make the following orders: 1. Leave to appeal against the decision of Darcy LCM of 15 April 2021 is refused. 2. The plaintiff is to pay the defendant's costs of the proceedings. 3. Any application for indemnity costs should be the subject of written submissions of no more than two pages, to be provided to chambers by email within 7 days, and any submissions in response by Dr Qasim, within 14 days.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 November 2022