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Quach v Fay [2026] ACTSC 314 | Case summary | Zoe

ACTACTSC

Quach v Fay

[2026] ACTSC 314

Supreme Court of the ACT|2026-08-26|Before: Elkaim AJ

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At a glance

Source facts

Court

Supreme Court of the ACT

Decision date

2026-08-26

Before

Elkaim AJ

Catchwords

PRACTICE AND PROCEDURE – INTERLOCUTORY APPLICATION – Application by defendant for summary judgment or strike out – whether proceedings constitute abuse of process – whether proceedings particularise viable cause of action – relief sought requires additional parties – strike out ordered

Source

Original judgment source is linked above.

Catchwords

PRACTICE AND PROCEDURE – INTERLOCUTORY APPLICATION – Application by defendant for summary judgment or strike out – whether proceedings constitute abuse of process – whether proceedings particularise viable cause of action – relief sought requires additional parties – strike out ordered

Judgment

Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: Quach v Fay Citation: [2026] ACTSC 314 Hearing Date: 21 August 2026 Decision Date: 26 August 2026 Before: Elkaim AJ Decision: (1) The proceedings are struck out pursuant to r 425 of the Court Procedures Rules 2006 (ACT). (2) The plaintiff is to pay the defendant’s costs of the proceedings. Catchwords: PRACTICE AND PROCEDURE – INTERLOCUTORY APPLICATION – Application by defendant for summary judgment or strike out – whether proceedings constitute abuse of process – whether proceedings particularise viable cause of action – relief sought requires additional parties – strike out ordered Legislation Cited: Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law s 18 Court Procedures Rules 2006 (ACT), rr 425, 1147 Cases Cited: Quach v ATM Residential Pty Ltd (No 2) [2024] ACTCA 38 Quach v ATM Residential Pty Ltd (No 3) ACTCA 25 Quach v ATM Residential Pty Ltd [2022] ACTSC 210 Quach v ATM Residential Pty Ltd trading as McGrath North Canberra [2025] HCADisp 89 Parties: Dr Michael Van Thanh Quach (Plaintiff) Michael Ross Fay (Defendant) Representation: Counsel Self-represented (Plaintiff) G Blank with T Bush (Defendant) Solicitors North Herring Lawyers (Applicant) Self-represented (Respondent) File Number: SC 168 of 2026 ELKAIM AJ: Introduction

The plaintiff says that the property should have been sold to him. He has no doubt that the vendor would have preferred the higher sale price. He says that the defendant, by delaying his offer after 1 November 2019, has caused him loss in that he does not now own the property, and he has suffered damages as a result of not being the accepted purchaser.
The orders sought by the plaintiff, besides interest and costs, are as follows 1. The contract of sale of 17 Toorale Terrace, Lawson ACT 2617, at the lower price of $1,450,000 is annulled. 2. Performance of the contract for sale of 17 Toorale Terrace, Lawson ACT 2617, for the Plaintiff to purchase the property at $1,505,000. 3. Compensatory damages. The defendant’s assertions
According to the defendant the plaintiff’s claim is “frivolous or vexatious, discloses no reasonable cause of action, and is otherwise an abuse of process.” It is therefore susceptible to being summarily dismissed, or struck out or dismissed, under either of rules 425 or 1147 of the Court Procedures Rules 2006 (ACT) (Rules), as applicable.
The defendant submitted that the first two orders sought by the plaintiff were simply unavailable against the defendant and, further, that these orders should have required the inclusion in the proceedings of the current owners of the property.
To the extent the claim was for misleading and deceptive conduct under s 18 of the Australian Consumer Law (ACL), the pleading was deficient in that it does not identify the representations or conduct relied upon, the damage claimed is not disclosed and there is no explanation of how the defendant, an employed real estate agent, was engaged in “trade or commerce”.
In addition, the defendant asserted that there was simply no cause of action described by the proceedings. Accordingly, they were vexatious and an abuse of process. Consideration
In relation to the first two orders sought by the plaintiff, the defendant’s submission is correct. The current owners of the property are the proper defendants. It is inconceivable that a court would make orders dissolving a person’s ownership of a property without that person being a party to the proceedings.
The plaintiff’s claim (as described in Order 3) is for compensatory damages, seemingly arising under the ACL or perhaps through an equitable right to damages. I say “seemingly” and “perhaps” because the plaintiff has not provided the necessary particulars to understand the true nature of his claim.
On 16 June 2026, Mr Herring (the defendant’s solicitor) wrote to the plaintiff asking for particulars of his claim. The defendant did not respond. On 26 June 2026, Mr Herring sent a further email to the defendant asking for a response. Again, there was no answer from the plaintiff.
On 29 June 2026, Senior Deputy Registrar Noble made an order that the plaintiff answer the request for particulars by 13 July 2026. On that day, the plaintiff sent an email to Mr Herring in which he stated: I refer to your letter of 16 June 2026, the particulars of kind have been accepted by the ACT Supreme Court in a related matter, against the business operating at the same address as your client did. That matter is still open.
Mr Herring sent an email back on 16 July 2026 telling the plaintiff that the other proceedings were not relevant and he was seeking particulars in the proceedings against his client. No response was received to this email.
In my view, the particulars provided in the statement of claim are unable to ground a claim for damages, either under the ACL, or via some presently unidentified entitlement in equity. This failure is sufficient to have the proceedings struck out.
In addition, and in any event, I am of the view that the proceedings do not disclose any viable cause of action. The plaintiff’s claim seems to be that by delaying the offer made by the plaintiff in November 2019 he irredeemably prejudiced the plaintiff’s capacity to buy the property. The difficulty is that this would involve the defendant having deliberately abandoned his role as an agent, in that the offer would not have been communicated to the vendor, let alone to the defendant’s employer, the real estate agency.
There are no particulars provided that could substantiate such allegations. The document tendered by the plaintiff (Exhibit 1) does not provide the necessary particulars and, to the contrary, discloses no private relationship between the vendor and the defendant. There is no information to suggest that the defendant did not act in the normal manner of an agent, namely, to pass on any offer made to the vendor.
The plaintiff said, from the bar table, that the vendor was unhappy with the fact that he had not obtained the higher price on the sale. This may be logical but lacks any evidentiary support.
In conclusion, I think there is a basis for both summary judgment and the striking out of the claim. It may be that summary judgment would be confined to Orders 1 and 2 sought in the statement of claim and the balance of the orders then struck out. I think it preferable to deal with the whole of the claim together so that I will strike out the entire proceedings under r 425 of the Rules.