Robert Sebie v Bresic Whitney Pty Limited and Adrian Oddi Real Estate Pty Limited

District Court of NSW|2021-04-09|Before: Pembroke J

Judgment

Pursuant to a Notice of Motion dated 21 January 2021, the Defendants have moved for orders that the proceedings be either dismissed pursuant to UCPR 13.4 or that the Statement of Claim be struck out pursuant to UCPR 14.28. Consequential orders as to costs are also sought.
In support of their motion, the Defendants relied on an affidavit of Philip Parker solicitor dated 22 January 2021 [1] and judgments of: - 1. Judge Wilson SC in proceedings 2020/00020712; [2] 2. Pembroke J in Pham v Enterprise ICT Pty Limited [3] and 3. The Court of Appeal in Enterprise ICT Pty Limited v Pham (No 2). [4] The Plaintiff relied on his own affidavits dated 9 April 2020 [5] and 5 February 2021. [6]
The matter has a somewhat unfortunate history. It was listed in the March sittings of the Court at Parramatta in a running list during which it came to be mentioned on several occasions before being set down for hearing on 5 March 2021. On that occasion, the solicitor for the Plaintiff was firstly delayed in attending and when the matter was stood down to facilitate his attendance, he was not in a position to address the substantive issues. Consequently, the matter was stood over and ultimately heard on 9 April 2021. On that occasion, the Plaintiff appeared unrepresented as a Notice of Removal of Solicitor was filed on 22 March 2021.
The written submissions ultimately relied upon were those of the Plaintiff prepared by his solicitor dated 3 March 2021 and those of Mr Sebie himself dated 19 March 2021. The Defendants relied on submissions prepared by their solicitor dated 11 February 2021.
Before dealing with the substance of the motion it is necessary to recount some matters of background.

Earlier Proceedings in District Court in Matter 2020/00020712

According to Mr Parker's affidavit of 22 January 2021 he is the solicitor for both Defendants. [10] He states that on 16 January 2020, Mr Sebie commenced proceedings against his clients filing a Statement of Claim in this Court which was an in the form of Annexure A and subsequently amended on 7 April 2020 in the form of Annexure B to his said affidavit. This was in matter 2020/00020712.
On 7 February 2020, the Defendants in the proceedings (who were the same Defendants as in the present proceedings) filed a notice of motion seeking to have the proceedings dismissed under UCPR 13.4 or the Statement of Claim struck out under UCPR 14.28. [11]
That motion came to be heard by Wilson SC DCJ and determined on 29 April 2020 when orders were made pursuant to both the aforementioned rules.
Wilson SC DCJ's judgment noted that when the Defendants motion came before Norton SC DCJ and directions were made inter alia granting Mr Sebie leave to file and serve an Amended Statement of Claim on or before 12 March 2020. Mr Sebie ultimately did not do so until 7 April 2020. His Honour stated: "it would appear that the claim is brought on the basis that it is a breach of an agency agreement although it is quite unclear from the Amended Statement of Claim precisely what the cause of action is and indeed what the remedy that is sought is and the basis for the same."
His Honour added: "the Amended Statement of Claim seeks a number of orders by way of declaratory relief in relation to the agents who had the conduct of the sale of the premises the subject of these proceedings. As I understand Mr Sebie, it is his allegation that the property was sold by the exchange of a contract which he signed some together with an authority which he signed, permitting the sale of the property and the exchange of contracts. This is not made clear anywhere in the Amended Statement of Claim. Indeed the Amended Statement of Claim simply refers to a number of facts, some of which have no relevance at all to what I anticipate the claim by the Plaintiff might be, such as medical conditions and the like."
Wilson SC DCJ held that the Amended Statement of Claim before him was similar and carried the same deficiencies as the original Statement of Claim. His Honour further held: - 1. If the action was one for breach of contract then the types of matters that ought to be pleaded are the factual circumstances giving rise to the contract, the specific breach claimed to have been committed by the agent in respect of the contract, the specific breach claimed to have been committed by the agent in respect of the contract and the damages which flowed as a consequence of that breach. None of those matters are sufficiently pleaded in the Amended Statement of Claim filed by the Plaintiff. 2. The claim brought was frivolous and vexatious having regard to the decision of Pembroke J in the earlier mentioned proceedings. Wilson SC DCJ referred to Mr Sebie's contention that Pembroke J or Slattery J had suggested he had a cause of action against the agent. He stated that whether or not that be the case, no cause of action was disclosed supporting his finding that proceedings were frivolous and vexatious. 3. In view of the aforementioned findings, Wilson SC DCJ held that he was satisfied pursuant to UCPR 14.28 that the striking out of the pleadings was justified as they failed to disclose a reasonable course of action, had a tendency to cause prejudice, embarrassment and delay and the proceedings were otherwise an abuse of process. 4. Wilson SC DCJ held that the Plaintiff had ample opportunity to prepare a Statement of Claim in an appropriate form and provided no explanation for his failure to communicate with lawyers prior to and since the filing of the original Statement of Claim. Consequently the Plaintiff had offended the overriding purpose in section 56 the Civil Procedure Act 2005 (NSW) (the 2005 Act) and accordingly pursuant to UCPR 13.4 and 14.28 the proceedings were dismissed.
The Defendants contended that the present proceedings were already the subject of: 1. determination by the Supreme Court of NSW; and 2. orders in this Court pursuant to UCPR 13.4 and 14.28 such that Mr Sebie's underlying claim has no reasonable prospects of success. [12]

Are the Further Proceedings in this Court Precluded ?

I have earlier referred to the history of the present motion which follows that of the proceedings 2020/00020712. One of the issues that arose at the outset of the hearing of motion before me is whether the Plaintiff is precluded from bringing the present proceedings in circumstances of Wilson SC DCJ's orders of 29 April 2020. Mr Sebie contends that there is no such barrier in light of section 91 of the 2005 Act.
Having reflected on Wilson SC DCJ's decision, I am satisfied that the Plaintiff is not precluded from bringing these proceedings as there was "no determination on the merits" with the terms of section 91 of the 2005 Act and the order for dismissal under UCPR 14.28 did not involve "terms" on which the order was made.
Whilst Wilson SC DCJ made reference to the decision of Pembroke J in Pham v Enterprise ICT Pty Ltd his Honour left open that there was a potential cause of action finding that no cause of action was disclosed in the pleading. This is confirmed by the fact that his Honour remarked in the course of proceedings on 29 April 2020 that it would appear to him that the Plaintiff would still be in time to bring fresh proceedings. [13]
This leads to a consideration of the Defendants' other substantive arguments.

Limitations

Before me on 9 April 2021, the Defendant did not pursue an argument that the Statement of Claim was statute barred under the Limitations Act 1969 (NSW) conceding that the question of whether the Plaintiff's claim was within time was arguable. [14]

Estoppel

The Defendant's remaining arguments included on reliance on issue estoppel and what is referred to as Anshun estoppel following the latter's recognition in Port of Melbourne Authority v Anshun. [15]
In written submissions, the Defendants pointed out that Pham v Enterprise ICT Pty Ltd was the subject of 15 judgments in the Supreme Court and reliance was placed on the statements of principle referred to in Haines v Australian Broadcasting Corporation. [16]

Issue Estoppel

So far as issue estoppel is concerned Pham v Enterprise ICT Pty Ltd was ultimately determined on the basis of Mr Sebie affirming the contract with Mr and Mrs Pham. The reasoning relating to whether Mr Sebie sent emails to Mr Oddi on 26 September 2015, 29 October 2014 at 4:26pm and 30 October 2014 whilst determined adversely to Mr Sebie were said to "not matter even if they were sent."
Applying the practical test referred to in Murphy v Abi Saab [17] by Gleeson CJ, if Mr Sebie had sought to appeal but his challenge was confined to the finding involving instructions to Mr Oddi in the aforesaid emails, his appeal would be hopeless in light of the acknowledgement that he elected to affirm the contract. The finding of an affirmation of the contract was not challenged on appeal.
The Statement of Claim relies on an email sent at 4.44pm on 29 October 2014 to Mr Oddi to hold off signing the contract and also to an attendance by Mr Oddi at Mr Sebie's home at 8.30pm the same day where it is asserted that the agent "applied undue duress." [18] It also refers to Mr Sebie forwarding a text message to Mr Oddi at 7.28am on 30 October 2014 to confirm holding onto the contracts until he spoke to his solicitor together with a follow up phone call at about 7.40am. [19] It is not apparent as to whether the email at 4.44pm is a reference to the same email as that referred to in Pembroke J's judgment.
In its context, I do not consider that the issue of instructions to Mr Oddi can be viewed as being of importance to litigation in the way the matter came to be finalised in Pham v Enterprise ICT Pty Ltd. Nor is it apparent from the limited records provided that the issue can be described as "necessarily determined" and "one of importance to the final result" as described by Hunt CJ at CL in Haines v Australian Broadcasting Corporation. [20] It follows to the extent that Mr Sebie asserts that Mr Oddi failed to follow his instructions the question of issue estoppel does not in my view arise.
Beyond that, Pembroke J's judgment in so far as it related to dealings with Mr Oddi did not extend to finding as to whether there was otherwise a breach of contract or breach of other duties owed.

Anshun Estoppel

The question of Anshun estoppel raises different considerations.
In Gibbs & McAllion Lloyd Pty Ltd v Kinna, Kenny JA stated: Whether or not it is unreasonable for a party asserting a cause of action in a later proceeding not to have done so in an earlier proceeding depends almost entirely on the particular circumstances. It seems, however, that there are two matters which must first be established before it can be said that the failure to raise a cause of action earlier might be said to have been unreasonable. The first is that the cause of action must be one that could have been raised in the previous proceeding. …... Secondly, it must appear that the same or substantially the same facts will arise for consideration in the second as in the first proceeding. [21]
Her Honour's remarks were cited favourably in Timbercorp Finance Pty Ltd (in Liq) v Tomes. [22]
In Tanning Research Laboratories Inc v O'Brien, Brennan and Dawson JJ stated: A plaintiff who has an unadjudicated cause of action which can be enforced only in fresh proceedings (Duedu v. Yiboe (1961) 1 WLR 1040, at p 1046) cannot be precluded from taking fresh proceedings merely because he could have and, if you will, should have counterclaimed on that cause of action in a forum chosen by the opposite party in proceedings in which the opposite party sued him. We do not read the majority judgment in Port of Melbourne Authority v. Anshun Pty. Ltd. as holding the contrary, except in a case where the relief claimed in the second proceeding is inconsistent with the judgment in the first: see especially at pp 599-601. [23]
In Bryant v Commonwealth Bank of Australia the Full Federal Court of Australia referred to Brennan and Dawson JJ's judgment in Tanning Research Laboratories stating: It is true that, in Tanning Research Laboratories at CLR 346, Brennan and Dawson JJ stated that the Anshun principle will ordinarily not apply to cross-claims. They made an exception of cases where the relief claimed in the second proceedings is inconsistent with the judgment in the first. In making this distinction, their Honours may have had in mind a situation, such as the one before them in that case, where the cross-claim depended on facts remote from those of the principal claim. Questions of substantive degree may be involved; and in contrast to defences, many cross-claims may have little or no connection with the principal claim in the action; there may be no more than an identicality of parties. Where that is so, there may be no policy justification for forcing defendants to litigate their claims as cross-claims rather than as principal claims in separate actions in the forum of their choice. But, where, as here, a defendant's claim is intimately connected with that of the plaintiff, in the sense that each arises, substantially, out of the same matters of fact, there is every reason to require that both be litigated at the one time; thereby minimising costs and avoiding the possibility of inconsistent judgments: cf Federal Court of Australia Act 1976 (Cth) s 22. [24]
Mr Sebie argued that that no Anshun estoppel could arise where the parties to the earlier action were not the same as those in the proceeding he now brings. That proposition is contrary to the decision in Habib v Radio 2UE Sydney Pty Ltd [25] where McColl JA stated: An Anshun estoppel also arises where an omission to plead a claim or defence will contribute to the existence of conflicting judgments, including those which are contradictory, though they may not be pronounced on the same cause of action as long as they appear to declare rights which are inconsistent in respect of the same transaction: Anshun (at 603-604). Thus an Anshun estoppel will apply even though the parties to the second proceedings are not the same as in the first. Although there may be "no question … of oppression and unfairness" where the parties in the second action "were not parties to the earlier action", the new proceedings may threaten the integrity of the administration of justice if they raise the prospect of conflicting judgments: Spalla (at [64]-[65]), referring to Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287 (at [36]).
The Defendants bear the onus of establishing that UCPR 13.1 and/or 14.28 are engaged such that the proceeding/pleading should be dismissed. I am not satisfied on the limited information before the Court that the Defendants have discharged that onus by way of establishing Anshun estoppel.
The Defendants' contention is to the effect that Mr Sebie should have brought proceedings against the present Defendants by way of cross-claim in the proceedings before Pembroke J. Those proceedings fundamentally related to an action for specific performance where notwithstanding any action by Mr Oddi, Mr Sebie is noted to have to affirm the contract. As I understand the position in those proceedings, Mr Oddi was called as a witness by Mr and Mrs Pham. The context of Mr Oddi being called is not clearly identifiable on the information before me. The submissions made by Mr Sebie in respect of Mr Oddi that Pembroke J described at [49] as "fanciful" related to an allegation that Mr Oddi was part of a conspiracy against him. Nothing of any substance appears to flow from that observation.
Based on the limited information before me particularly the context in which the question of Mr Oddi's involvement was raised, the relative importance of the matter, the claim for relief involved in the proceeding heard before Pembroke J (as opposed to those in this Court) and the fact that the Defendants' argument relates to the bringing of a cross-claim against a third party; I'm not satisfied that a case of Anshun estoppel has been so demonstrated in the context of the current proceedings.
Bearing in mind this conclusion, it is unnecessary to address Mr Sebie's other contention relating to proceedings before Sackar J in Andy Vuong Duc Pham v Enterprise ICT Pty Ltd. [26] Whether or not those proceedings have the impact contended for by Mr Sebie need not be determined.

Should the Statement of Claim be Struck Out

This leads to the question of whether the Statement of Claim should be struck out on the basis contended for by the Defendants.
Paragraph [3] of the pleading states "order that, defendants to pay the plaintiff Damages in the sum of $700,000"
The Defendants argued that this claim was not supported by the pleading.
Paragraph [4] of the Statement of Claim states: "order that the defendant's to return the sales commission to the plaintiff"
The Defendant argued that this claim was not supported by the pleadings and the Supreme Court in Pham v Enterprise ICT Pty Ltd found that the Plaintiff had a contractual obligation to sell the property pursuant to a contract for sale. That contract was said to have been actioned by the First Defendant and the claim for relief is embarrassing and bound to fail.
In respect of paragraph [6] of the Statement of Claim this reads: "A declaration that the defendants acted as a dual Real Estate Agent for both the purchaser and the vendor. The defendants did not disclose this in proper act to the plaintiffs.
The Defendants contended that putting aside the question of whether a declaration of the kind sought could (or should) be made by the Court and what relief could properly flow from such a declaration, the claim suffers the same inherent problem as the relief sought in paragraph 4. Further the claim is not supported by the pleading and the finding of the Supreme Court.
If paragraph [3] of the Statement of Claim is meant to encapsulate a claim for damages as a liquidated sum then it appears referenced to paragraph [38] of the Statement of Claim. It would be a matter for evidence if that aspect of the claim is ultimately established. Bearing in mind the further claims made in paragraph [48] of the Statement of Claim any damages would be confined to the Court's jurisdictional limit.
Paragraphs [4] and [6] seek declarations which it appears to be accepted are not within the Court's jurisdiction.
Similarly paragraphs [11] (e), (f), (g), (h), (i) and (k) seek declarations as to the breaching of various statutory provisions. It has not been established how these matters could be the subject of the relief in that form. Paragraph [11] (h) also refers to the Trade Practices Act 1974 (Cth) which has no application since 1 January 2011 following its replacement by the Competition and Consumer Act 2010 (Cth).
Paragraph [11] (j) of the Statement of Claim pleads: A declaration that the defendants failed to rescind the contract of sale as instructed by the plaintiffs on the 8 November 2014.
The Defendants contends that even if the relief sought was supported by sufficient pleading it is not open to the Court to make such a declaration the matter having been the subject of a determination by the Supreme Court.
Mr Sebie's obligation to sell the property in light of what Pembroke J found amounted to an affirmation raises practical issues. In particular it is not apparent as to how it is open for Mr Sebie to seek to have the contract of sale made "either voidable or void" as contended at paragraph [47] of his Statement of Claim. Quite apart from that it has not been particularised or pleaded as to what right of rescission Mr Sebie asserts he has or the form of instructions he gave.
Mr Sebie through his solicitor's submissions of 3 March 2011 accepted that the Statement of Claim has not been cast in the "normal mode" and that the claims were not expressed in the "usual formal structure" but the Plaintiff appears to have a relevant basis to put on a substantial claim by way of breach of contract, breach of fiduciary duty and other duties of negligence seeking damages. [27]
The Defendants' objections to the Statement of Claim have been outlined above. Whilst I have considered striking out those paragraphs, the Statement of Claim has other fundamental deficiencies. It doesn't directly plead and particularise the breach of contract case it seeks to advance against the Defendants. Furthermore whilst the Plaintiff may if he so chooses advance claims of breach of statutory duty, he is required to set out any such claim in proper form including relevant particulars. A number of the paragraphs also appear to have little relevance to the proceedings that Mr Sebie seeks to bring. [28]
I have borne in mind the opportunities Mr Sebie has already had to properly plead his action but failed to do so. Nevertheless, I'm not satisfied as a whole that a reasonable cause of action is not able to be pleaded. In Turner v Bulletin Newspaper Co Pty Ltd by Jacobs J stating: "where the form of pleading is defective the Court can strike it out entirely and is not bound to reframe it for the Plaintiff's benefit but when it does so leave to remake must be given." [29]
Turner was decided prior to the 2005 Act. In this case, I have had regard to the matters in sections 56, 57 and 58 of the 2005 Act. This is the second occasion that the Defendants have been required to bring a motion of this nature. The Plaintiff's compliance with Court orders has been less than satisfactory although I understand some attempt to amend the Statement of Claim was made that was not accepted by the registry in the absence of leave. Nevertheless, I also bear in mind the injustice that would be visited the Plaintiff who were he to be denied leave would certainly be statute bared if leave to re-plead were not granted and the proceedings were dismissed.
Taking all circumstances into account I would make the following orders: 1. Statement of claim filed is struck out pursuant UCPR 14.28 (1) (a) and (b) 2. The Plaintiff granted leave to file an Amended Statement of Claim within 28 days; 3. The Plaintiff to pay the Defendants' costs.

Endnotes

Exhibit A.
Unreported, 29 April 2020 District Court of NSW.
[2017] NSWCA 446.
[2018] NSWCA 185.
Exhibit 2.
Exhibit 1.
at [48].
at [49].
Enterprise ICT Pty Ltd v Pham (No 2) [2018] NSWCA 185.
Exhibit A.
Exhibit A, Annexure C.
Defendants' written submissions at [62].
Exhibit A, Annexure E.
See Wardley Australia Pty Ltd v Western Australia [1992] HCA 55, (1992) 175 CLR 514 at [533].
(1981) 147 CLR 589.
(1995) 43 NSWLR 404 by Hunt CJ at CL at [415]; See Defendants' written submissions at [24]-[25].
(1995) 37 NSWLR 280 at [288] F and 291 G.
Statement of Claim at [23]-[25].
Statement of Claim at [32]-[33].
(1995) 43 NSWLR 408 at [415].
[1998] VSCA 52 at [23] (Phillips JA agreeing).
(2016) 259 CLR 212 at [111] by Gordon J.
(1990) 169 CLR 332 at [18]; [1990] HCA 8.
(1995) 57 FCR 287;(1995) 130 ALR 129;(1995) ATPR 41-421.
[2009] NSWCA 231 at [83] (Giles and Campbell JJA agreeing).
[2020] NSWSC 1089. See Exhibit 1 at [13].
Plaintiff's written submissions dated 3 March 2021.
See [39]-[40].
(1974) 131 CLR 69 at [97]. 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: 26 April 2021

Limitations Act 1969(NSW)

Trade Practices Act 1974(Cth)

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