Sethi v The Owners - Strata Plan 93392 - [2023] NSWSC 1647 - NSWSC 2023 case summary

Judgment (4 paragraphs)

[1]

The application to set aside the orders made on 13 November 2023

As I have noted, above, the Common Law Registrar referred prayer 1 of the plaintiff's notice of motion to me - which reads: 1. Pursuant to UCPR r36.15 (1), r36.16 (3)(b), r36.16 (3A) and Civil Procedure Act s63, orders or judgment made by the Judge on 13 November 2023 hearing for the matter are set-aside.
In relation to the application to set aside the orders made on 13 November 2023, the plaintiff and defendant have served material in connection with that application: the plaintiff filed submissions dated 13 November 2023, an affidavit affirmed 12 November 2023 and a chronology dated 12 November 2023; the defendant filed written submissions dated 12 December 2023.
Notwithstanding the orders that I made, the plaintiff did not file any further submissions: I proceed on the basis that the plaintiff's arguments are as set out in his written submissions dated 13 November 2023. Having reviewed the material provided by the parties I am satisfied that the matter can be, and should be, dealt with in Chambers and without a further hearing: ss 56-58 of the Civil Procedure Act 2005 (NSW). I have also considered the need to eliminate delay (s 59) and the need for the cost to the parties to be proportionate (s 60).
The submissions of the plaintiff are not easy to follow. They cover the following matters: 1. "The reargument of the defendant's motion and the listing is listed irregularly and illegally": submissions at [2]-[9]. 2. "Breach of duty of obligation and breach of duty of care by the presiding judge and presiding registrars": submissions at [10]-[13]. 3. "Misconduct and delays incurred by the defendant's solicitors": submissions at [14]-[21]. 4. "Misconduct and delays incurred by the registrars/duty registrars or prothonotary": submissions at [22]-[24]. 5. "Defendant's notice of appearance and its service is invalid": submissions at [25]-[30]. 6. "Defendant's notice of motion filed 6 June 2023 was out of time and non-compliant": submissions at [31]-[37]. 7. "Pending items": submissions at [38]-[43]. 8. "Conclusion": submissions at [44]-[57].

The gross sum costs order

When I delivered my reasons for judgment the defendant indicated that it wished to pursue an application for a gross sum costs order. The defendant proposed a series of timetabling orders that would enable that application to be prepared and determined.
The plaintiff indicated, however, that he needed time - said to be two weeks - in order to respond to the timetable proposed by the defendant. Given that the defendant did not oppose the plaintiff having that time to consider the orders proposed, I made the following orders: … 4. Direct that any proposed short minutes of order that are sought by the defendant for a gross sum costs order be served upon the plaintiff by 13 November 2023, 4pm 5. Direct that the plaintiff to the extent that any alternate orders are sought that those proposed orders be filed an serve by 5pm 15 November 2023 in connection with the application for gross sum costs order.
No proposed orders were ever served by the plaintiff, so far as I am aware and that is where that aspect of the matter has remained. It is important that the sole outstanding issue in the proceeding is dealt with promptly. Thus, in relation to that application, I make the following further orders: 1. Order the defendant to file and serve all evidence upon which it relies by 25 January 2024, 5pm in support of its application for a gross sum costs order pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW). 2. Order the defendant to file and serve an outline of written submissions in support of that application, limited to no more than five pages (and not containing any footnotes) by 25 January 2024, 5pm. 3. Order the plaintiff to file and serve all evidence upon which he relies, in connection with the defendant's application for a gross sum costs order, by 29 February 2024, 5pm. 4. Order the plaintiff to file and serve an outline of written submissions, in connection with the defendant's application for a gross sum costs order, limited to no more than five pages (and not containing any footnotes) by 29 February 2024, 5pm. 5. Note that upon the filing and service of the above material consideration will be given to whether the matter will be dealt with on the papers.

Introduction

On 13 November 2023 I made an order summarily dismissing the plaintiff's claim: Sethi v The Owners Strata Plan No 93392 (No 6) [2023] NSWSC 1368.
Immediately following pronouncement of orders and delivery of my reasons, the plaintiff requested that I recuse myself. Given there were a number of other matters listed at that time, I indicated to the plaintiff that, if he wished to pursue such an application, he could do so at a later time.
There was a further development. The plaintiff, at 10:26am on 13 November 2023, filed a notice of motion seeking, inter alia, an order that the orders that I made on 13 November 2023 be set aside. That notice of motion was initially returnable before the Common Law Registrar on 30 November 2023. On that day the Common Law Registrar, undoubtedly because the plaintiff's notice of motion sought to set aside orders that I had made, referred prayer 1 of the plaintiff's notice of motion to me.

Sethi v The Owners - Strata Plan 93392

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