Sethi v Cho

Procedural background

1. By way of background, Mr Sethi (as tenant) and Mr Cho (as landlord) were parties to a residential tenancy agreement in relation to a premises at St Leonards. They have been involved in long-running proceedings in the New South Wales Civil and Administrative Tribunal (NCAT) in relation to the termination of the tenancy agreement and possession orders made by NCAT in favour of Mr Cho.
2. Mr Sethi's 20 September Motion was filed in proceedings that he commenced on an urgent ex parte basis by summons filed on 8 August 2023, which sought the following relief: 1. An urgent injunction to restrain execution i.e., a stay of execution by the Sheriff of an order of possession dated 07 August 2023. 2. Pursuant to Supreme Court Act - r65(2), r66(4), r61(3)(b) and r 61(4), or any such relevant law, an injunction order to stay the NSW Civil and Administrative Tribunal (NCAT) orders made on 07 August 2023 and 01 March 2023 for NCAT Consumer and Commercial Division Proceedings and orders made on NCAT 30 June 2023 and 28 July 2023 for the NCAT Appeal Panel proceedings 2023/00085892 up until the proposed appeal as per the Notice of Intention to Appeal in the Court of Appeal or any related matter is fully finalised. 3. Order for the tenancy of XXX Atchison St, St Leonards, NSW 2065 by the Plaintiff to continue as the termination of the tenancy was never ordered, up until the further orders of this court or the Appeal in the Court of Appeal or any related matter is fully finalised.
3. On 10 August 2023, Lindsay J made orders for the proceedings to be listed before the Equity Duty Judge at 2.00pm the following day, having directed Mr Sethi to serve the orders on Mr Cho by 4.00pm. His Honour's orders included lengthy notations which recorded the steps taken in the NCAT proceedings, set out Principal Member AD Suthers' reasons for refusing Mr Sethi's 8 August 2023 application for a stay of the order for possession and other orders made by NCAT and noted that Mr Sethi had informed the Court that he intended to file a notice of appeal in the Court of Appeal in relation to orders made in the NCAT proceedings. His Honour also made the following order: 9. ORDER that the defendant, by service on him of a copy of these orders, be invited to show cause, on that occasion, why execution of a warrant for possession (pursuant to orders of NCAT) should not be stayed up to and including 23 August 2023, reserving to NCAT any determination it may make on the application of the plaintiff listed for hearing by the Tribunal on that day.
4. On 10 August 2023, at 4.07pm, Mr Sethi filed a notice of appeal in the Court of Appeal (2023/00240746) (Appeal Proceedings) which seeks to appeal various orders made by NCAT, including orders relating to termination of the tenancy agreement and for possession.
5. On 11 August 2023, at 2.00pm, the matter first came before me as Equity Duty Judge. On that occasion, Mr Sethi appeared for himself and Ms Patrick, a solicitor at Hicksons Lawyers, appeared on behalf of Mr Cho. Mr Sethi made oral submissions in support of the relief sought in his summons. During the course of the hearing, Mr Cho, through Ms Patrick, proffered an undertaking not to seek to enforce the warrant for possession issued by NCAT on 7 August 2023 until 25 August 2023 to allow a hearing before NCAT on 23 August 2023 to take place. He also proffered an undertaking to notify the Office of the Sheriff of New South Wales not to take any further steps to enforce the warrant of possession in accordance with that undertaking.
6. Having heard from the parties, I refused to grant the relief sought by Mr Sethi in his summons for essentially two reasons.
7. First, I did not consider there was any utility in granting an urgent injunction to restrain execution of the order for possession in circumstances where Mr Cho had given an undertaking through his solicitor not to enforce the warrant for possession up until 25 August 2023 to allow for the hearing on 23 August 2023 before NCAT to proceed (T15.48-16.1; T18.49-19.2).
8. Second, as Mr Sethi's applications in relation to the orders of NCAT were the subject of an appeal filed by Mr Sethi in the Court of Appeal, I considered that any applications he wished to make in relation to a stay of the NCAT orders, the tenancy agreement or writ of possession should have been brought by Mr Sethi before the Court of Appeal and determined as part of the Appeal Proceedings or in NCAT (T19.2-8).
9. At the hearing on 11 August 2023, the parties also made submissions on costs. Mr Sethi sought an order for costs in his favour and Ms Patrick sought orders for costs on behalf of Mr Cho. I concluded that neither party should be awarded their costs in circumstances where Mr Cho had given an undertaking at the first possible opportunity and, in my view, Mr Sethi had brought his applications in the wrong Court (T23.41-9).
10. When Mr Sethi maintained that these proceedings should continue beyond 25 August 2023, I explained to Mr Sethi that his summons had been dealt with, there was no further application before the Court and the proceedings in this Court had been completed (T25.12-39).
11. On 11 August 2023, the Court made the following orders and notations: 1. Note the undertaking given by the defendant through his solicitor not to seek to enforce the warrant for possession in relation to the apartment located at XXX Atchison St, St Leonards, NSW 2065 issued by the NSW Civil & Administrative Tribunal (NCAT) on 7 August 2023 until 25 August 2023 to allow the hearing before NCAT on 23 August 2023 to take place. 2. Note the undertaking by the defendant through his solicitor to notify by 4.00pm on 11 August the Office of the Sheriff of NSW not to take any further steps to enforce the warrant of possession in accordance with Order 1. 3. Direct the defendant by his solicitor to notify the Office of the Sheriff of NSW by 4.00pm on 11 August 2023 not to take steps to enforce the warrant of possession in accordance with the undertakings in Orders 1 and 2 above. 4. Direct the defendant by his solicitor to notify the plaintiff in writing by no later than 5.00pm 11 August 2023 that steps have been taken to comply with the undertakings at Orders 1 and 2 above and the direction in Order 3. 5. Note that the plaintiff has filed a notice of appeal in the Court of Appeal on 10 August 2023 in relation to the decisions of NCAT on 1 March 2023, 30 June 2023, 28 July 2023 and 3 August 2023. 6. Note that any application by the plaintiff for a stay in relation to the warrant for possession or the orders made by NCAT on 1 March 2023, 30 June 2023, 28 July 2023 or 3 August 2023 should be made to the Court of Appeal in proceedings 2023/00085892 or to NCAT at the hearing on 23 August 2023. 7. No order as to the costs of the Summons, with the intent that each party pay their own costs. 8. Otherwise, refuse to grant the plaintiff the relief sought in the Summons filed on 8 August 2023.
12. At 11.59pm on 11 August 2023, Mr Sethi filed a notice of motion in these proceedings seeking, amongst other orders: that the orders made on 11 August 2023 be set aside or varied pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 36.15(1) and r 36.16 and Civil Procedure Act 2005 (NSW) (CPA), s 63; that the proceedings be removed from NCAT to continue within the Court of Appeal; that the warrant for possession be set aside or, alternatively, stayed until the first directions hearing in the Court of Appeal on 20 September 2023; and for costs (11 August Motion).
13. Mr Sethi's 11 August Motion came before Robb J, sitting as the Equity Duty Judge, on 17 August 2023. Ms Patrick appeared on behalf of Mr Cho and Mr Sethi represented himself. Robb J dismissed Mr Sethi's 11 August Motion and ordered him to pay Mr Cho's costs of the notice of motion.
14. In an ex tempore judgment given on 17 August, Sethi v Cho (Supreme Court (NSW), Robb J, 17 August 2023, unrep), Robb J stated: Her Honour made no order as to costs with the intent that each party pay their own costs. Importantly, order 8 was "Otherwise, refuse to grant the plaintiff the relief sought in the Summons filed on 8 August 2023." That effectively meant that the plaintiff's Summons had been dismissed except for the other notations and directions that were given. … The Court has tried to explain to the plaintiff that in all of these circumstances the Duty Judge in the Equity Division of the Supreme Court either does not have jurisdiction to make the orders sought or should not make them because it is more appropriate that any application be made in another place. As already stated, on 11 August 2023, Henry J made a formal notation that the applications the plaintiff wishes to make should be made either in the Court of Appeal or to NCAT. The plaintiff has ignored that note. Justice Henry has dealt with the summons and those proceedings are now finished. It is not open to the plaintiff to approach another trial judge in the Equity Division to ask for orders that are inconsistent with the orders made by Henry J. In that respect, I note that prayer 1 of the notice of motion seeks an order setting aside or varying the orders made by Henry J on 11 August 2023. In all of these circumstances, I propose to dismiss the notice of motion. Not only is it incompetent but the hearing is preventing the Court from dealing with at least one urgent motion in the duty list that requires the Court to attempt to give a judgment and formulate special orders within the next two hours. Accordingly, I dismiss the notice of motion filed by the plaintiff that is now before the Court. I order the plaintiff to pay the defendant's costs of the notice of motion.
15. At 2.08pm on 17 August 2023, Mr Sethi filed a notice of motion seeking orders that were identical to those sought in the 11 August Motion, save for the inclusion of a reference to UCPR, r 36.16 and an additional date in respect of orders made by NCAT (17 August Motion).
16. On 24 August 2023, Mr Sethi's 17 August Motion was referred by the Equity Registrar to Robb J, sitting as the Equity Duty Judge that day. After hearing from Mr Sethi and Ms Patrick on behalf of Mr Cho, Robb J dismissed Mr Sethi's 17 August Motion forthwith on the ground that it was an abuse of process, ordered that Mr Sethi pay Mr Cho's costs of the motion and ordered that the orders be entered forthwith.
17. The transcript records Robb J's reasons as including the following (T3.17-23): I am going to dismiss the motion. You have been told in the most clear terms that a judge of this court will not make an order setting aside an order of another judge. It is something that cannot be done. Justice Henry has dealt with your summons. You have put on a notice of motion and I have dealt with it by dismissing it. You have now put on the same motion asking for exactly the same relief and that is an adduce [sic; abuse] of process -

Mr Sethi's 20 September Motion

1. It is in this context that the orders sought by Mr Sethi in his 20 September Motion are to be considered.
2. Mr Sethi's 20 September Motion seeks the following orders: 1. In order to regularise the proceedings, these proceedings i.e., 2023/00252488 be aligned or linked with the related Court of Appeal proceedings 2023/00240745. 2. Pursuant to UCPR r36.15 (1), r36.16 (4) and CPA s63, orders made by the Duty (Equity) Judge on 24 August 2023 hearing for the matter are set-aside or vary. 3. Pursuant to UCPR r36.15 (), r 36.16 (4) and CPA s 63, orders made by the Duty (Equity) Judge on 17 August 2023 hearing for the matter are set-aside or vary. 4. Leave is granted for the Plaintiff to issue a Subpoena to property agent of the property i.e., to 'Century 21 West Pacific'. 5. Order that the fees and costs of the proceedings 2023/00252488 be granted to the Plaintiff, including the interest prior to the judgement and after the judgement until the money is paid in full. 6. Order that in addition provide any other relief for damages to the Plaintiff as appropriate.
3. I deal with each order in turn.

Order 1

1. I accept Mr Cho's submission that there is no basis for an order that these proceedings be aligned or linked with the Appeal Proceedings.
2. Nothing advanced by Mr Sethi in his written or oral submissions to this Court identifies the basis on which such an order could be made. The order sought does not, as Mr Sethi's Motion contends, regularise the proceedings and it would be irregular and likely impermissible for this Court to make such an order. This is especially so as there are, in my view, no further issues to be resolved in these proceedings as Mr Sethi's summons filed on 8 August 2023 was dealt with by this Court in its entirety on 11 August 2023.

Orders 2 and 3

1. UCPR, r 36.15(1) provides the Court with a general power to set aside a judgment or order in any proceedings upon sufficient cause being shown if the judgment was given or entered or the order was made irregularly, illegally, or against good faith.
2. As I understood Mr Sethi's submissions based on the documents filed with the Court and his oral submissions, he contends that the orders made by Robb J on 17 and 24 August 2023 were made irregularly. There was no submission to the effect that Robb J's orders were made illegally or against good faith.
3. The concept of irregularity, for the purposes of UCPR, r 36.15, includes contravention of or non-compliance with specific provisions governing the making or entry of a judgment or order. Irregularity relevant to the present rule does not extend to errors attributable to the forensic decisions of the parties or to errors in the merits of the substantive decision or earlier procedural deficiencies: Ritchie's Uniform Civil Procedure NSW at [36.15.10] and the cases there cited.
4. In Mr Sethi's written submissions, he contended that: 1. Court staff had been making continuous attempts to either close these proceedings or transfer them to the Common Law Division, suggesting that there may also be an attempt to link these proceedings with other current, substantial proceedings relevant to Mr Sethi in the Common Law Division; 2. there are irregularities and anomalies in the online Registry; and 3. he had not been afforded a proper opportunity to file his submissions on the notice of motion as the matter had only continued in the Equity Duty List.
5. The irregularities and anomalies referred to by Mr Sethi in respect of the online Registry and the attempts to transfer the proceedings to the Common Law Division relates to the fact that the Registry has, in the past, identified these proceedings as being in the Common Law Division of this Court. This appears to have arisen because the front page of Mr Sethi's summons, as filed in Court on 8 August 2023, identified the proceedings as "Common Law Division", "General List", and not as "Equity Division", which Mr Sethi described as his "mistake".
6. Mr Sethi's concern was dealt with on 13 October 2023 by this Court directing the Registry to update the records of these proceedings to reflect that they were commenced in the Equity Division of the Supreme Court and were proceedings in this Division. To the extent that there has been an anomaly in the way in which the online Registry recorded these proceedings, it does not mean that Robb J's orders were irregularly made.
7. Further, there is nothing in the Court file or in the materials that have been filed by Mr Sethi which support Mr Sethi's assertion that there has been some attempt to link these proceedings with other current proceedings he has in the Common Law Division.
8. I do not accept Mr Sethi's contention that he has not been provided a proper opportunity to file his submissions on the 20 September Motion or make submissions before Robb J because the matter has only continued in the Duty List. Mr Sethi was provided with an opportunity to make submissions before Robb J in relation to the 11 and 17 August Motions, which were rejected by his Honour.
9. As to the 20 September Motion, that was filed by Mr Sethi without a supporting affidavit. He has since filed an affidavit dated 13 October 2023 and an affidavit dated 3 November 2023, which was filed in Court this morning. He has been provided with two opportunities to adduce further evidence and submissions in relation to matters raised by the 20 September Motion and has failed to do so. In my view, no basis has been advanced in Mr Sethi's affidavits, or his oral and written submissions, upon which the Court could conclude that Robb J's orders were made irregularly or against good faith.
10. As to Mr Sethi's reliance on the other provisions referred to in his 20 September Motion, I accept Mr Cho's submission that UCPR, r 36.16(4) is not applicable to Mr Sethi's application. That rule does not provide a source of power for the Court to set aside or vary a judgment or order but simply provides that nothing in the rule affects any other power of the Court to set aside or vary a judgment or order.
11. As to s 63 of the CPA, that provision applies where there is, by reason of anything done or omitted to be done, a failure to comply with any requirement of the CPA or of the rules of the Court, relevantly, by a party. Mr Sethi has not identified any relevant failure to comply by Mr Cho.
12. In conclusion, Mr Sethi has not articulated any proper grounds for setting aside or varying the orders made by Robb J on 17 and 24 August 2023 in respect of which Mr Sethi seems to take objection to because he does not agree with the outcomes.

Order 4

1. Order 4 of Mr Sethi's 20 September Motion seeks leave to issue a subpoena to the property agent of the premises the subject of the tenancy agreement, namely, Century 21 West Pacific (Century 21).
2. After filing the 20 September Motion, Mr Sethi sought leave, pursuant to UCPR, r 7.3, from the Court to issue a subpoena to Century 21. That application was considered by a Senior Deputy Registrar of this Court and refused on 5 October 2023. Mr Sethi was notified of the Senior Deputy Registrar's reasons for refusing leave, which reasons record that: 1. Mr Sethi appeared to be using an application within these proceedings to obtain evidence or material for use in the Appeal Proceedings which, in the view of the Senior Deputy Registrar, constituted an abuse of process; and 2. there did not appear to be any proceedings on foot (referring to the orders made on 11 and 17 August 2023 and Robb J's ex tempore judgment) and, if the proceedings were on foot, then the application was entirely premature.
3. Mr Sethi has not sought a review of that decision under UCPR, r 49.19.
4. In any event, for the reasons set out by the Senior Deputy Registrar and in my ex tempore judgment given this morning setting aside the notice to produce issued by Mr Sethi and refusing Mr Sethi's application to disqualify Hicksons Lawyers from representing Mr Cho (at [28]-[29]), I would not grant leave to Mr Sethi to issue a subpoena to Century 21. I am not satisfied that Mr Sethi has established a legitimate forensic purpose for issuing the subpoena or that there is a reasonable basis, beyond speculation, that the documents he seeks would assist in these proceedings or are relevant to an issue in them.

Order 5

1. I am also persuaded by Mr Cho's submission that Mr Sethi has not established any basis upon which he is entitled to an order as sought in order 5 of Mr Sethi's 20 September Motion, that the fees and costs of these proceedings be granted to Mr Sethi, including the interest prior to the judgment and after the judgment until the money is paid in full.
2. The orders made on 11 August 2023 dealt with the costs of the summons, providing that each party was to pay their own costs: see order 7.
3. Robb J has made costs orders against Mr Sethi, in favour of Mr Cho, in relation to Mr Sethi's 11 and 17 August Motions.
4. Given the outcome of his application, there is no basis for Mr Sethi to be awarded costs.

Order 6

1. Order 6 of the 20 September Motion seeks an order that the Court "provide any other relief for damages to the plaintiff as appropriate".
2. Leaving to one side that the relief sought by Mr Sethi in his summons has been refused, no cause of action has been pleaded or identified by Mr Sethi in his summons or submissions which could possibly entitle him to any relief to damages.

Conclusion

1. For the above reasons, Mr Sethi's 20 September Motion should be dismissed with an order that he pay Mr Cho's costs.
2. I should also record that there is force to Mr Cho's submission that Mr Sethi's 20 September Motion is an abuse of the Court's process. As he submits, order 1 was without legal foundation; orders 2 and 3 effectively sought the same or similar relief to the orders sought by Mr Sethi's 11 and 17 August Motions, which Robb J found involved abuses of the Court's process; order 4 sought documents which, as I have said, lack a legitimate forensic purpose; and there was no proper basis for seeking costs or damages in orders 5 and 6.

Further order preventing steps being taken by Mr Sethi in these proceedings

1. In addition to seeking orders that Mr Sethi's 20 September Motion be dismissed with costs, Mr Cho seeks an order that would prevent Mr Sethi from taking any further steps in these proceedings without the leave of the Court so as to prevent further abuses of the process of the Court.
2. Having regard to the procedural background, I am persuaded that it is appropriate to make such an order in this case.
3. This is particularly so in circumstances where, on other occasions before this Court, Mr Sethi has indicated that he would pursue further applications to reagitate the same issues when his applications were refused. On 13 October 2023, after Mr Sethi was refused leave to file an amended notice of motion, Mr Sethi said twice, "Well, I can file another one, that's not a problem" (T4.5-17; T13.19-26). This morning, after it was explained to Mr Sethi that his adjournment application had been refused and that today's hearing would deal with his 20 September Motion, he said "I mean, then I would file another motion" (T13.43).
4. Mr Sethi's conduct and statements leave the Court to conclude that it is inevitable that he will file a further motion in the absence of any order that would prevent Mr Sethi from taking further steps in these proceedings without leave of the Court. It is a matter for Mr Sethi if he wishes to appeal the orders and judgments of this Court. However, Mr Cho and the Court should not have to deal with a series of motions which seek to revisit issues in proceedings commenced by a summons which, as has been explained to Mr Sethi, has been dealt with and is at an end.
5. The steps taken by Mr Sethi to date have led to costs to Mr Cho and Court time that are disproportionate to civil litigation conducted in a manner consistent with the overriding purpose of the CPA to facilitate the just, quick and cheap resolution of the real issues in the proceedings and the dictates of justice. Justice needs to be considered from the perspective of both parties, not just Mr Sethi: National Australia Bank Limited v Mellander [2023] NSWSC 1242 at [24].
6. In my view, justice in this case dictates that I should make the order sought by Mr Cho that Mr Sethi be prevented from taking any further steps in the proceedings without leave of the Court.
7. For these reasons, I make the following orders: 1. Dismiss the plaintiff's Notice of Motion filed on 20 September 2023. 2. The plaintiff to pay the defendant's costs in relation to the plaintiff's Notice of Motion filed on 20 September 2023. 3. Order that the plaintiff is not to file any further notice of motion, other Court document or take any other steps in these proceedings, such as seeking leave to issue a subpoena, without the leave of the Court. 4. These orders be entered forthwith.

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: 07 November 2023