Sebie v Bresic Whitney Balmain Pty Ltd [2022] NSWSC 816 | Case summary

Sebie v Bresic Whitney Balmain Pty Ltd [2022] NSWSC 816 | Case summary | Zoe

ex tempore Judgment

HIS HONOUR: Before the Court is a motion, notice of which was filed on 31 January 2022. The motion seeks orders striking out the Statement of Claim and/or striking out the proceedings. The primary relief sought by the applicant, who are the defendants in the proceedings, is for the proceedings to be dismissed. Orders are also sought for a declaration of the plaintiff under the Vexatious Proceedings Act 2008 (NSW) in relation to proceedings against either one of the defendants, their agents, staff and consultants, and/or in relation to the sale of property.
The matter has an unfortunate history. Before dealing with the history of the litigation more generally, it is necessary to point out that by order of the Registrar, being Registrar Jones, made on 25 February 2022, the plaintiff was directed to file written submissions or an outline of written submissions by 13 May 2022. No submissions were filed or served and there are no submissions on behalf of the plaintiff before the Court.
By the Affidavit of Mr Michael James Davies Docker, filed in Court today and affirmed 3 June 2022, and the annexures thereto, it is clear that the plaintiff was given notice by email of the time and date of today's proceedings of the motion and of the orders of the learned registrar.
The plaintiff has not appeared at today's proceedings. The Court waited 15 minutes before commencing, and the matter was called three times, but no appearance was made on behalf of the plaintiff. The defendants do not move for default judgment for obvious reasons. Such default proceedings would not deal with the merits of the issue that is before the Court.
The Court is required, as it is exercising judicial power, to accord the plaintiff natural justice. In the words of his Honour Deane J, albeit concerning a tribunal required to act judicially, in Sullivan v Department of Transport (1978) 20 ALR 323 at 343: "[T]he relevant duty of the [court] is to ensure that a party is given a reasonable opportunity to present his case. Neither the Act nor the common law imposes upon the [court] the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled."
The comment by Deane J, while a member of the Full Court of the Federal Court of Australia, has been adopted and applied in the High Court on a number of occasions. As these are ex tempore reasons I am not going to cite each of the occasions on which that passage has been cited with approval.
It is necessary to set out, as earlier stated, some of the very basic factual background. The plaintiff in these proceedings, who is the respondent to the motion, is Robert Sebie who was the registered proprietor of land in Chiswick.
The first defendant, and the applicant on the motion or one of them, is a firm of real estate agents, Bresic Whitney Balmain Pty Ltd (hereinafter "Bresic Whitney") and was the contracted real estate company for the sale of the property in Chiswick (hereinafter referred to as "the Property").
The second defendant in the substantive proceedings, also an applicant on the motion, is Adrian Oddi who was the agent with the carriage of the sale of the property for and on behalf of Bresic Whitney. It is unclear whether Mr Oddi is currently engaged by Bresic Whitney and nothing turns on that proposition. He certainly was at the time.
The plaintiff alleges that in 2014 the defendants pressured him into signing a contract of sale for the Property in Chiswick and that, against his express instructions, the defendants proceeded to exchange contracts with the purchaser of the property. In particular the plaintiff alleges that the defendants, against instructions, reduced the required deposit of 10% to 5% and dispensed with the cooling off period. On the face of it, given that ultimately, and I use the word "ultimately" with caution, the matter proceeded to be exchanged, it is unclear what, if any, damage would have been, or was, occasioned by a reduction of the deposit and/or the absence of a cooling off period.
The matter has a significant history. By a Statement of Claim in the current proceedings which was filed on 22 September 2021, the plaintiff seeks damages in the amount of $700,000 for "selling the property 700,000 market value (sic)"; it is unclear what is intended by that. The plaintiff further seeks an order, although it is spelled D-R-D-E-R (I assume it is a typographical error) of damages of $1,400,000 for out-of-pocket expenses on the ostensible basis of breach of statutory duty, negligence, breach of fiduciary duties and unconscionable conduct.
The plaintiff was granted leave on three occasions to file an amended Statement of Claim which he has not done. The defendants filed the motion, the subject of this hearing, on 31 January 2022.
It is necessary to deal with previous proceedings involving the plaintiff. The plaintiff was subject to a number of proceedings by the purported purchasers of the Property in Chiswick, who were Mr and Mrs Pham. Mr and Mrs Pham brought proceedings against the plaintiff (in these proceedings) for specific performance of the contract for sale dated 24 October 2014, which the plaintiff had signed and provided authority to exchange prior thereto but subsequently sought to resile from.
The plaintiff, after the exchange of the contracts with Mr and Mrs Pham, purported to transfer the property to Enterprise ICT Pty Ltd which his brother and/or sister, perhaps both, was or were the sole directors. The purchasers, Mr and Mrs Pham, then brought proceedings against that company. The proceedings were determined by his Honour Pembroke J of this Court against the plaintiff (in these proceedings) and in favour of the purchasers being Mr and Mrs Pham. [1]
In the course of his judgment, Pembroke J made the following findings. First, Pembroke J held that the transfer of the property to the company was fraudulent as its intent I was to cheat Mr and Mrs Pham of their existing rights to the property. Secondly, the judgment records that the plaintiff in these proceedings made various statements to the defendants in these proceedings affirming his intention to sell the property to the purchasers, but that he appeared to resile from that intention the following day. Apparently, the plaintiff received legal advice at the time that he was bound to the contract with Mr and Mrs Pham, despite his subsequent attitude to the sale to them.
Thirdly, his Honour made clear that a number of emails that the plaintiff proposed to send to the second defendant were, in his Honour's word, "questionable", and accepted the second defendant's evidence that he did not receive them. His Honour found that, even if the emails did exist, the plaintiff's conduct clearly evinced an intention to sell which gave rise to estoppel to prevent him from denying he was bound by the contract. Fourthly, his Honour made a comment about the plaintiff in the following terms: "I had a considerable opportunity ... to form an opinion as to his motives, his honesty and his credibility. The plaintiff represented himself … I gave him every indulgence to explain his actions and every opportunity to justify his conduct. Ultimately, I formed the view that his evidence was unreliable and that his defence is unmeritorious." [2]
Subsequent orders were the subject of submissions and Pembroke J delivered a further judgment ordering that the fraudulent transfer be set aside. [3] An appeal against the judgments of his Honour was dismissed. [4]
The plaintiff in these proceedings, along with Enterprise ICT and various other related litigants, have brought and defended numerous other proceedings in the Supreme Court relating to the sale or possession of the property. At the time of a judgment by the Court of Appeal in 2021, the proceedings numbered 35 different judgments of the Court. [5] Those proceedings included proceedings for possession, proceedings for contempt, and various other sets of proceedings. I do not include for the purposes of my exercise in this matter the contempt proceedings taken against the plaintiff (in these proceedings) for disobedience of the orders of the Court. In those proceedings, the plaintiff in these proceedings was the defendant to the contempt charge.
It is a nice question as to whether those contempt proceedings were criminal in nature notwithstanding that the contempt was a disobedience of a civil order. There is also some question as to whether criminal proceedings can ever amount to a matter that can be taken into account in terms of the vexatious proceedings.
I hasten to add that if I were to express a view of my own, in relation to proceedings of contempt where a plaintiff (in proceedings against whom orders under the Vexatious Proceedings Act are sought to be made) has been the defendant in contempt proceedings, and was held to be in contempt, it would be that that circumstance ought to be considered as part of the context of the conduct of the plaintiff which the Court is entitled to take into account, even though the proceedings themselves are not counted as proceedings that are frequent or vexatious.
However, given that the Court of Appeal has expressly left open the question of whether contempt proceedings ought to be properly taken into account in determining whether a party has behaved vexatiously, I disregard what would otherwise be my personal view in that matter.
In the proceedings before Pembroke J which dealt with the appropriateness (or otherwise) and binding nature of the contract with the then purchasers, Mr and Mrs Pham, Mr Sebie (the plaintiff in these proceedings) was a party. If it were said, as it seems now to be said, that undue pressure or some kind of unconscionable conduct occurred as a result of which the contract for sale was void or voidable, then the time to make that claim would have been at the time the proceedings were before his Honour Pembroke J. [6]
There are a number of aspects of the proceedings which need to be the subject of detailed comment. I have not yet completed the history of proceedings. The plaintiff has filed similar statements of claim against the two defendants in two previous proceedings in the District Court. The first proceedings, which are Annexures A to E of the Affidavit of Michael James Davies Docker in Court Book Tab 3, were commenced by Statement of Claim filed by the plaintiff in the District Court on 16 January 2020. On 7 February 2020 the defendants filed a motion on notice to dismiss the proceedings. On 7 April 2020 the plaintiff filed an amended Statement of Claim. On 29 April 2020 Wilson DCJ, as her Honour then was, dismissed the proceedings and struck out the amended Statement of Claim.
The second set of proceedings, which are Annexures F to L in the Affidavit of Michael James Davies Docker at Court Book Tab 3, were commenced by Statement of Claim by the plaintiff in the District Court on 5 November 2020. On 22 January 2021 the defendants filed a motion on notice to dismiss the proceedings. On 16 April 2021 Hatzistergos DCJ of the District Court struck out the Statement of Claim and granted leave for the plaintiff to file an amended Statement of Claim. That judgment is Annexure H to the aforesaid Affidavit of Mr Docker.
On 13 May 2021 the plaintiff filed, I hesitate to say somewhat oddly, two Amended Statements of Claim. On 24 June 2021 the defendants filed a motion on notice to strike out the amended statements of claim. [7] On 23 August 2021 Coleman DCJ of the District Court struck out the amended Statement of Claim and issued a judgment on costs in favour of the defendants.
As is clear from that which has already been expressed, the defendants rely on the Affidavit of Michael James Davies Docker sworn 31 January 2022 and the annexures thereto.
The defendant submits that it is difficult - and I think, with respect, they are being kind - to identify a cause of action from the pleadings and the particulars contained in the Statement of Claim. The relief sought is not of the kind which the Court ordinarily would give or should consider giving, in their submission.
Further, the defendant submits that the Statement of Claim filed in these proceedings is a reiteration of the claims that were sought to be made in the first and second proceedings and, if there were one, any subsequent appeal. I hasten to add no appeal has been filed or sought to be filed against the orders of her Honour Wilson DCJ or of the orders of his Honour Coleman J striking out the amended statements of claim in the District Court.
Over and above the foregoing matters the defendants in their motion in these proceedings claim that the issues pleaded have been finally determined in the first and second proceedings, and that any further attempts to allow the plaintiff to bring or amend proceedings in any court are precluded by any one of res judicata, issue estoppel and/or abuse of process, and perhaps all three.
Further, the defendant submits that the matters alleged in the Statement of Claim have already been subject to judgment in this Court. Further, that the Statement of Claim pleaded in these proceedings is barred by the Limitation Act 1969 (NSW). To the extent that the plaintiffs allege a claim in contract or tort, plainly it is out of time.
To the extent that the plaintiffs allege unconscionable conduct, they do not allege in the Statement of Claim any special disability upon which any such unconscionability would be based or could be based.
Further, if, and it is certainly not expressed in the Statement of Claim, a claim for unconscionability were said to be based upon the provisions of the Contract Review Act, that would be out of time. The time limit being, from memory, two years.
I do not rely upon the findings of his Honour Pembroke J in relation to the honesty of the plaintiff. It seems to me that such findings are not binding and do not amount to a matter that ought to be taken into account, or applied, in the proceedings before the Court. Nevertheless, the conduct of the proceedings, and the finding of dishonesty based, as it is in part at least, on independent verifiable material, is a matter that the Court is entitled to take into account in determining the facts relating to the conduct of the plaintiff in taking the proceedings that he has.
As I have already made clear, the claim for unconscionable conduct in any event ought to have been taken at the time that the proceedings were before his Honour Pembroke J. I also have been taken, and rely upon, the statement of principle of his Honour Leeming JA as part of the majority in Potier v The Attorney-General of the State of New South Wales [2015] NSWCA 129, in which his Honour discussed the principles associated with vexatious proceedings and the meaning of the term "frequently". His Honour said: "[114] The power to make an order under the Vexatious Proceedings Act is conditioned upon a court being satisfied that the person has 'frequently' instituted or conducted vexatious proceedings in Australia. The meaning of a word like 'frequently' turns very much on its context; that is no different from many other protean words (such as 'adversely affect' and 'mistake': cf Independent Commission Against Corruption v Cunneen [2015] HCA 14 at [2] and [57] and CTM v The Queen [2008] HCA 25; 236 CLR 440 at [7]). It is not possible to articulate a precise test. However, the following two matters relevant to its construction for the purposes of this appeal may be noted. Each supports the conclusion that 'frequently' is a relatively low threshold. [115] First, the change in language from the predecessor provision (s 84 of the Supreme Court Act) of 'habitually and persistently' was deliberate, and plainly lowered the threshold condition. [116] Secondly, there are vexatious proceedings and vexatious proceedings. It is one thing to file urgent appeals or applications for judicial review which cause substantial disruption to courts and other litigants and participants in the legal system (for example, the adjournment of a trial), or to make serious allegations of fraud unfounded in the evidence. It is quite different to encounter some poorly known legal doctrine which denies reasonable grounds to the proceedings or renders them technically an abuse of process, or to file a series of applications for the annulment of decisions of magistrates (I have in mind the nine applications for annulment made by Mr Viavattene all listed and determined on the same day: see Viavattene v Attorney General (NSW) [2015] NSWCA 44 at [70]). That is to say, both the quality of the vexatiousness of a proceeding, and the nature of the proceeding itself, inform the assessment of frequency. [117] I can readily envisage circumstances where a litigant commences only a handful of large proceedings, making serious allegations without any proper basis, but which occupy a significant amount of time and resources of parties and the courts, which could satisfy the statutory test of 'frequently'. This illustrates the fact that '[t]he issue posed by the statutory term "frequently" is not to be assessed merely by an arithmetic calculation': Viavattene at [49]. [118] Each of those considerations favour 'frequently' being a relatively low threshold."
I have also been referred to, and rely upon, the comments of her Honour Simpson AJA in Zepinic v Chateau Constructions Australia Limited [2018] NSWCA 317, who delivered the judgment of the Court, which was agreed on by her Honour McColl JA, and his Honour Macfarlan JA. In particular I refer to the stepped approach of her Honour referring to the task assigned to a judge who is requested to make orders under the Vexatious Proceedings Act.
As her Honour makes clear, the first step is to identify the proceedings the subject of application which are said to be vexatious. The second step is to determine the application of s 6 of the Vexatious Proceedings Act being, if any of those proceedings is an abuse of the proceedings of the Court or tribunal in which it is brought; instituted to harass or annoy, to cause delay or detriment or for another wrongful purpose; instituted or pursued without reasonable ground; or conducted in such a way as to achieve a wrongful purpose, or in a way that harasses or causes unreasonable annoyance, delay or detriment. [8]
Her Honour also dealt with the particular facts of that case, which with the necessary changes being made, applicable when considering the issues before the Court in these proceedings. [9]
Lastly, I refer to the judgment of the Court of Appeal in Mahmoud v Attorney General of New South Wales [2017] NSWCA 12, being the judgment of his Honour Payne JA (with whom their Honours Beazley P and Macfarlan JA agreed). In particular, I wish to deal with the issues that his Honour dealt with in terms of the exercise of the discretion to make an order under the Vexatious Proceedings Act. [10]
The first issue of discretion to which his Honour drew attention was the number of vexatious proceedings over the period of years. [11] In this case, there had been 35 sets of proceedings taken by the plaintiffs at the time of the aforementioned Court of Appeal judgment. [12] It seems to me that the number of proceedings - each of which had significant difficulties associated with abuse of process, vexatiousness, the purpose of the proceedings, and the arguability of any causes of action - is a matter that tends in favour of the making of an order under the Vexatious Proceedings Act.
Secondly, the content of the proceedings. [13] Again, for the same reasons, the contents of the proceedings and for the difficulties just adumbrated, I consider this to be a matter that tends in favour of the making of an order under the Vexatious Proceedings Act in these proceedings.
Thirdly, the Court is in a position to determine the proportion of the vexatious proceedings against the non-vexatious proceedings. [14] The applicant on the motion (being the defendants in the proceedings) have been most kind, but appropriately so, in determining whether and what proceedings were found in favour of the plaintiff. The only matters in all of the proceedings that have been thus far agitated by the plaintiff which have been found in his favour are first, that he was granted leave to appeal by Brereton JA (I hasten to add who was in the minority in the Court of Appeal) who, in the course of judgment, said that he would, as a matter of principle, grant leave to appeal but dismiss the appeal.
He was also granted leave to represent the company, which has been described, as the alter ego of the plaintiff, in various other proceedings, even though the proceedings themselves were unsuccessful. And lastly, in relation to the joinder of a party, he was granted a cost order in relation to that joinder, notwithstanding that ultimately the proceedings were not taken successfully by the plaintiff.
It seems to me that if one can suggest that the proceedings were "non-vexatious" as a result of leave having been thought to be appropriate by a minority of the Court of Appeal, leave being granted to represent a company, and a cost order on joinder, then those non-vexatious proceedings (if they were proceedings in and of themselves) are overwhelmingly outweighed by the vexatious proceedings that have been taken.
Fourthly, the conduct of the applicant in the present case tends in favour of the making of the order. [15] It seems, on the face of it, that the current proceedings are not only time barred; they are the subject of one or other of estoppel or abuse of process; and, as made clear at the outset of this judgment, the plaintiff has refused to file written submissions in accordance with the direction of the Court and has failed to attend at the motion to dismiss the proceedings.
Again, I find the conduct in these proceedings to favour the making of an order and to give rise to an inference that the proceedings are taken for the purpose of harassing and causing detriment, including costs.
Fifthly, the age of some of the proceedings described is significant but those proceedings have continued and, in relation to these proceedings, they are certainly of recent time. [16] These proceedings - as I have already stated, and I accept the submission of the defendant - are a reiteration of the claims that have been sought in a number of proceedings in this Court and/or the District Court, and raise matters that ought to have been raised, or for which the plaintiff had prior opportunity to agitate in this Court.
For the foregoing reasons, in my view, both as a result of the abuse of process and the other aspects to which I have referred (including the vexatiousness of the proceedings) the proceedings ought to be dismissed. I am also of the view that orders ought to be made under the Vexatious Proceedings Act against the plaintiff. Obviously, such an order would exempt any appeal from the vexatious proceeding order.
Lastly, I need to deal with the question of costs. Given the nature of the claims that have been made - the vexatiousness of the claims, and the fact that they are, on their face an abuse of process and re-agitating matters that have previously been raised - and given the inference that I have drawn - that the applicant has taken these proceedings for the purpose of harassing and causing the detriment to the defendants - the issue of indemnity costs arises.
Costs are always a matter of compensation and are awarded to compensate the successful party. They are not intended and are not, and cannot be, used as a punishment of a party. However, given the number and nature of the proceedings, it seems to me a proper compensation to the successful party in this case involves compensation for all of the reasonable costs associated with the proceedings. As a consequence of which, the Court will order indemnity costs.
The Court, as a consequence of the foregoing, makes the following orders: 1. Pursuant to rule 13.4 of the Uniform Civil Procedure Rules 2005 (NSW), the proceedings are dismissed. 2. Pursuant to section 8(7)(b) of the Vexatious Proceedings Act 2008 (NSW), Robert Sebie is prohibited from instituting proceedings in New South Wales: 1. against: 1. Bresic Whitney Group Holdings Pty Limited, its subsidiaries, its agents, staff and consultants; and 2. Adrian Oddi 1. relating to or in any way connected with the sale of property situated at 11 Tutt Crescent, Chiswick NSW 2046. 1. For the avoidance of doubt, nothing in Order 2 prohibits Robert Sebie from instituting proceedings within the meaning of the Vexatious Proceedings Act 2008 (NSW): 1. in any criminal proceedings brought against him as an accused; 2. seeking relief in the nature of a writ of habeas corpus; 3. appeal against this judgment. 1. The Plaintiff pay the Defendants' costs of this motion and these proceedings on an indemnity basis and such costs are payable forthwith. 2. Orders to be entered forthwith.

Sebie v Bresic Whitney Balmain Pty Ltd

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