Thambiappah Satchithanantham & Anor v Zeaiter Corporate Holdings Pty Ltd [2011] NSWSC 1609 (28 November 2011)

Last Updated: 11 January 2012

Supreme Court New South Wales

Case Title:	Thambiappah Satchithanantham & Anor v Zeaiter Corporate Holdings Pty Ltd
Medium Neutral Citation:	[2011] NSWSC 1609
Hearing Date(s):	28 November 2011
Decision Date:	28 November 2011
Jurisdiction:	Equity Division
Before:	Slattery J
Decision:	The first plaintiff's motion for summary judgment is stayed by the operation of Bankruptcy Act 1966 (Cth), s 60(2). Dismiss the second plaintiff's motion for summary judgment. Grant relief upon the first, second and fifth defendants' motion: striking out the Statement of Claim pursuant to UCPR , r 14.28; and, staying these proceedings until the payment of costs orders pursuant to UCPR , r 12.10. Order the second plaintiff to pay the first, second and fifth defendant's costs of the motion. Proceedings adjourned to 9.30am on 21 February 2012.
Catchwords:	PROCEDURE - miscellaneous procedural matters - plaintiff's application for summary judgment - defendants' application to strike out pleadings under UCPR, r 14.28 and stay proceedings under UCPR, r 12.10 until costs orders paid in substantially similar prior claims - BANKRUPTCY - scope and policy of legislation - application of bankruptcy laws - Bankruptcy Act (Cth), s 60(2) - proceedings brought by an undischarged bankrupt - whether stayed by the operation of the Bankruptcy Act.
Legislation Cited:	Bankruptcy Act (Cth)1966, s 60 Vexatious Proceedings Act (NSW) 2008
Cases Cited:	Damjanovic v Maley [2002] NSWCA 230; (2002) 55 NSWLR 149 Satchithanantham v National Australia Bank [2009] NSWCA 268 Satchi & Satchi Australia Pty Ltd & Ors v Zeaiter Corporate Holdings Pty Ltd [2008] NSWSC 715 Satchi & Satchi Australia Pty Ltd v Zeaiter Corporate Holdings Pty Ltd [2010] NSWSC 715 Satchi & Satchi Australia Pty Ltd v Zeaiter Corporate Holdings Pty Ltd [2011] NSWSC 892 Satchi & Satchi Australia Pty Ltd & Ors v Zeaiter Corporate Holdings Pty Ltd, Supreme Court of New South Wales, unreported, 30 March 2011, Fullerton J Sweeney and Vendeleur Pty Limitd v BNY Australia Limited (1993) 11 ACSR 356 Zeaiter Corporate Holdings Pty Ltd v Satchithanantham (2008) NSWADT 165
Texts Cited:
Category:	Principal judgment
Parties:	First Plaintiff:- Mr Satchithanantham Second Plaintiff:- Mrs Satchithanantham First Defendant:- Zeaiter Corporate Holdings Second Defendant:- Mr Anthony Zeaiter Third Defendant:- Bituman Pty Ltd trading as Indocar Spices Fourth Defendant:- Mr Shangmugam Javakhar Fifth Defendant:- Wentworthville Real Estate Pty Ltd
Representation
- Counsel:	Plaintiffs:- Mr Satchithanantham First and Second Defendants:- Mr F.F.F. Salama
- Solicitors:	First and Second Defendants:- Thurlow Fisher solicitors
File number(s):	2008/00279556
Publication Restriction:	No.

EX TEMPORE JUDGMENT

1. In March 2004 Zeaiter Corporate Holdings Pty Ltd ("Zeaiter Corporate"), leased first floor premises in Station Street Wentworthville to Mrs Thambiappah Satchithanantham ("Mrs Satchithanantham"). She defaulted in the payments of rent on the lease in July 2004. The present application is one of a myriad of proceedings which arise out of the grant and termination of that first floor lease, and another lease on the ground floor of the same premises to Satchi & Satchi Australia Pty Limited , a company controlled by Mrs Satchithanantham and her husband.

2. The parties to these proceedings are Mr and Mrs Satchithanantham as plaintiffs. The first defendant is Zeaiter Corporate; the second defendant is Mr Anthony Zeaiter, a director of the first defendant; the third defendant is Bituman Pty Ltd, trading as Indocar Spices; the fourth defendant is Mr Shangmugam Javakhar; the fifth defendant is Wentworthville Real Estate Pty Ltd. Bituman was a proposed lessee of the ground floor premises. Mr Javakhar was a director of the new lessee. The fifth defendant, Wentworthville Real Estate, was the agent involved in the initial letting and the reletting of the premises under both leases.

3. Before the Court for hearing today are two motions, one brought by Mr and Mrs Satchithanantham and the other brought by the first, second and fifth defendants. Satchi & Satchi Australia Pty Limited is not a party to these proceedings. It is important to identify two threshold issues that arise on both motions: (1) the first plaintiff, Mr Satchithanantham, is an undischarged bankrupt; (2) he also seeks the leave of court to appear on behalf of the second plaintiff, Mrs Satchithanantham. Those threshold issues almost dispose of today's application. I will deal with each of them first.

Mr Satchithanantham's Bankruptcy

4. It is agreed on both sides that Mr Satchithanantham was made bankrupt in March 2009. These proceedings were commenced in July 2008, before Mr Satchithanantham became bankrupt.

5. The legislation that governs the capacity of a bankrupt to maintain proceedings such as these is Bankruptcy Act 1966 (Cth), s 60, which provides as follows:-

" 60 Stay of legal proceedings

(1) The Court may, at any time after the presentation of a petition, upon such terms and conditions as it thinks fit:

(a) discharge an order made, whether before or after the commencement of this subsection, against the person or property of the debtor under any law relating to the imprisonment of fraudulent debtors and, in a case where the debtor is imprisoned or otherwise held in custody under such a law, discharge the debtor out of custody; or

(b) stay any legal process, whether civil or criminal and whether instituted before or after the commencement of this subsection, against the person or property of the debtor:

(i) in respect of the non-payment of a provable debt or of a pecuniary penalty payable in consequence of the non-payment of a provable debt; or

(ii) in consequence of his or her refusal or failure to comply with an order of a court, whether made in civil or criminal proceedings, for the payment of a provable debt;

and, in a case where the debtor is imprisoned or otherwise held in custody in consequence of the non-payment of a provable debt or of a pecuniary penalty referred to in subparagraph (i) or in consequence of his or her refusal or failure to comply with an order referred to in subparagraph (ii), discharge the debtor out of custody.

(2) An action commenced by a person who subsequently becomes a bankrupt is, upon his or her becoming a bankrupt, stayed until the trustee makes election, in writing, to prosecute or discontinue the action.

(3) If the trustee does not make such an election within 28 days after notice of the action is served upon him or her by a defendant or other party to the action, he or she shall be deemed to have abandoned the action.

(4) Notwithstanding anything contained in this section, a bankrupt may continue, in his or her own name, an action commenced by him or her before he or she became a bankrupt in respect of:

(a) any personal injury or wrong done to the bankrupt, his or her spouse or de facto partner or a member of his or her family; or

(b) the death of his or her spouse or de facto partner or of a member of his or her family.

Note: See also subsection 5(6).

(4A) Notwithstanding paragraph (1)(b), this section does not empower the Court to stay any proceedings under a proceeds of crime law.

(5) In this section, action means any civil proceeding, whether at law or in equity."

6. On the hearing of the motion the Court asked Mr Satchithanantham whether his trustee, the Insolvency and Trustee Service Australia (ITSA), had made any election in writing to prosecute these proceedings pursuant to Bankruptcy Act, s 60(2). Mr Satchithanantham said that ITSA had not done so. Mr Salama of counsel, who appears for the first and second defendants, indicated that he was not aware of any such election. It seems to me that so far as these proceedings concern Mr Satchithanantham, as first plaintiff, they are stayed by operation of law, and specifically by Bankruptcy Act , s 60(2). No further action can now be taken by Mr Satchithanantham in furtherance of these proceedings. To the extent that Mr Satchithanantham is a cross-respondent on the defendants' motion, I also stay that motion against him, pursuant to Bankruptcy Act , s 60(1).

Leave to Appear for Mrs Satchithanantham

7. Mrs Satchithanantham is not here in Court today. Nor is she represented here by a lawyer. Mr Satchithanantham sought leave to appear for her. I asked him why he should be granted that leave. He indicated that leave had been granted to him in the past to appear for his wife. It does appear from a number of the decisions of the ADT to which I have been referred that this is true.

8. Where a person who is not legally qualified and admitted as a legal practitioner of this court seeks to appear on behalf of another party, the Court may exercise its discretion, in its inherent jurisdiction, to allow the unqualified person to appear. But the Court does so in accordance with established principle: Damjanovic v Maley [2002] NSWSC 230; (2002) 55 NSWLR 149. In Damjanovic v Maley the Court of Appeal re-emphasized that higher courts should be wary of granting leave to unqualified persons to appear. The Court of Appeal, for example, has not permitted a husband to appear for his wife where there is a conflict of interest between them: Satchithanantham v National Australia Bank [2009] NSWCA 268.

9. As a general rule the public interest in the effective disposal of litigation in our courts is best achieved by parties employing qualified lawyers. A lay advocate is unqualified, unaccredited and uninsured and not subject to any disciplinary code. I asked Mr Satchithanantham why I should exercise the discretion to allow him to appear on his wife's behalf. He indicated, as I said, that this is what has occurred before.

10. But it seems to me that there are a number of reasons why leave should not be granted for him to represent his wife now. Mr Satchithanantham could not explain why his wife was not here herself other than to say that he was used to appearing for her. No evidence has been advanced to me as to why she could not engage a lawyer. Mr Satchithanantham said from the bar table that he has gone to a number of suburban legal centres seeking assistance for her. Mr Satchithanantham also indicated that he attempted to contact a lawyer on Saturday to appear for her today. That seems to me to be far too late and not a proper basis for the Court now to grant leave for him to appear for her today. He advanced no other particular problem, such as language difficulties or other personal circumstances as a reason for his wife not being able to be represented or present here today. In the circumstances, I decline to allow Mr Satchithanantham to appear on behalf of Mrs Satchithanantham.

Two Motions

11. But I have already allowed Mr Satchithanantham to advance some material in evidence for the purpose of enabling the Court to understand the nature of Mrs Satchithanantham's application. In light of my decision that Mr Satchithanantham, as an undischarged bankrupt can neither bring nor defend today's motions, it is not necessary to determine the motions so far as they concern him. But sufficient material has now been put before the Court that I should still make some determination in relation to Mrs Satchithanantham's case on the available material, notwithstanding the absence of any advocate for her on either motion.

12. There are two motions before the Court. The plaintiffs' motion which seeks: summary judgment on the Statement of Claim and an assessment of damages, in orders 1 to 4, against the first and second defendants; similar relief in orders 5 and 6 against the third to fifth defendants; and, in order 7, an application for costs against all defendants. The detailed orders sought by the second plaintiff in her motion are set out later in these reasons.

13. The motion brought on behalf of the first, second and fifth defendants, in summary, sought orders as follows:-

(1) consolidation of proceedings with the proceedings in the common law division;

(2) setting aside both the common law and equity division Statements of Claim under UCPR , r 12.11;

(3) striking out both Statements of Claim as against the first, second and fifth defendant pursuant to UCPR , r 14.28;

(4) stay of both Statements of Claim against the first, second and fifth defendants pursuant to UCPR , r 12.10 (but this prayer for relief is set out in full below); and

costs.

14. Although this motion only seeks orders on behalf of the first, second and fifth defendants, the same orders are sought on behalf of all defendants. For more convenient reference in these reasons, this motion will be described as "the defendants' motion" except where reference is required to specific defendants.

15. Order 4 sought in the defendants' motion identifies various proceedings in which Mr Satchithanantham and his wife or their family company, Satchi & Satchi Australia Pty Limtied have been involved, and in which costs orders have made against the plaintiffs. The terms of Order 4 are relevant to later reasons, so the whole order is set out below:-

"Further or in the alternative, that pursuant to rule 12.10 of the Uniform Civil Procedure Rules 2005(NSW) both Statement of Claims as against the First, Second and Fifth Defendant's be stayed until the Plaintiff(s) pay the costs of the First, Second and Fifth Defendants of the following proceedings that have been dismisses and costs orders made against them but not yet paid, or have costs orders yet to be assessed:

a. ADT Proceedings Number 055131m Zeaiter Corporate Holdings v Satchithanantham, costs order made on 31 August 2006 in the sum of $5,912.50;

b. ADT Proceedings Number 075031, Satchi & Satchi Australia Pty Ltd v Zeaiter Corporate Holdings Pty Ltd, costs order made on 18 December 2007 for costs to be paid by Applicants' and Thambiappah Satchithanantham personally as agent, costs to be assessed;

c. ADT Proceedings Number 089025, Satchi & Satchi Australia Pty Ltd v Zeaiter Corporate Holdings Pty Ltd, costs order made on 8 December 2008, costs to be assessed;

d. ADT Proceedings Number 055131, Zeaiter Corporate Holdings Pty Ltd v Satchithanantham, costs order made on 2 April 2009, costs to be assessed;

e. ADT Proceedings Number 089048 and 099022, Zeaiter Corporate Holdings Pty Ltd v Satchithanantham, costs order made on 25 September 2009, costs to be assessed;

f. Supreme Court Proceedings Number 30004/08, Satchi & Satchi Australia Pty Ltd v Zeaiter Corporate Holdings Pty Ltd, costs order made on 9 May 2008, costs to be assessed;

g. Supreme Court Proceedings Number 30004/08 Satchi & Satchi Australia Pty Ltd v Zeaiter Corpoarte Holdings Pty Ltd, costs order made on 30 July 2008, costs to be assessed.

h. Supreme Court Proceedings Number 2008/289772, Satchi & Satchi Australia Pty Ltd v Zeaiter Corporate Holdings Pty Ltd, costs order made on 25 June 2010, costs to be assessed;

i. ADT Proceedings Number 085133, Satchi & Satchi Pty Ltd v Zeaiter Corporate Holdings Pty Ltd, costs order made on 23 September 2010,costs to be assessed."

16. The evidence supports a finding that the costs orders described above have been made in these nine proceedings against either or both of Mr and Mrs Satchithanantham or their family company, as Satchi & Satchi Australia Pty Limited, as claimed.

17. Before considering the two motions a brief survey of the procedural history is useful.

Various Proceedings Since 2008

18. The Court is much assisted by the earlier judgments given in these proceedings which came before Justice Hoeben on several occasions in 2008 ( Satchi & Satchi Australia Pty Ltd & Ors v Zeaiter Corporate Holdings Pty Ltd [2008] NSWSC 411; Satchi & Satchi Australia Pty Ltd & Ors v Zeaiter Corporate Holdings Pty Ltd (No. 2), Supreme Court of New South Wales, unreported, 30 July 2008, Hoeben J), Justice Garling in 2010 ( Satchi & Satchi Australia Pty Ltd & Ors v Zeaiter Corporate Holdings Pty Ltd [2010] NSWSC 715) and Associate Justice Harrison in 2010 ( Satchi & Satchi Australia Pty Ltd & Ors v Zeaiter Corporate Holdings Pty Ltd [2011] NSWSC 892). Those judgments, and especially the detailed judgments of Justice Hoeben and Associate Justice Harrison, set out the course of these various proceedings since the initial grant and termination of the lease in 2004. I do not have to recount the procedural history again in this judgment as a result, other than in bare outline. That bare outline is this.

19. The First Floor Premises . Zeaiter Corporate commenced proceedings in the Local Court in respect of a first floor shop at the Station Street address against Mrs Satchithanantham, seeking damages for lost rent and alleging termination of the lease in July 2004. The proceedings were transferred to the Administrative Appeals Tribunal ("ADT") in September 2005. Mrs Satchithanantham commenced her own proceedings in the ADT for damages for alleged unconscionable and misleading conduct arising out of the grant of this first floor lease. The essential matter in issue between the parties in relation to the first floor lease was whether the rent figure quoted to Mrs Satchithanantham was a monthly or weekly rent. After various interlocutory skirmishes, the ADT rejected Mrs Satchithanantham's claim that the lease resulted from Zeaiter Corporate's unconscionable and misleading conduct; held that the lease was validly terminated; found that the lessor had lost rent and incurred outgoings as a result of Mrs Satchithanantham's conduct; and entered judgment against her for $70,187.78 and costs on 10 June 2008: Zeaiter Corporate Holdings Pty Limited v Satchithanantham [2008] NSW ADT 165. Mrs Satchithanantham's appeal to the ADT appeal panel was rejected on 25 September 2009 and another order for costs made against her: Satchithanantham v Zeaiter Corporate Holdings Pty Limited [2009] BSW ADTAP 53.

20. The Ground Floor Premises . After Mrs Satchithanantham's lease of the first floor at Station Street was terminated, she and her husband continued to occupy the ground floor of the same premises under a lease from the same landlord, but a lease this time to their family company, Satchi & Satchi Holdings Pty Limited ("Satchi & Satchi").

21. In September 2006 Satchi & Satchi and Zeaiter Corporate Holdings began to disagree about the payment of outgoings. Satchi & Satchi sought to exercise an option to renew the ground floor lease and Zeaiter disputed this. In February 2007 Satchi & Satchi filed an application with the ADT seeking a declaration as to the valid exercise of the option. But just before the ADT hearing was to commence in December 2007 it was discovered that Satchi & Satchi had been deregistered and the proceedings purportedly brought in its name in the ADT in respect of the ground floor lease were accordingly a nullity: Sweeney and Vendeleur Pty Limitd v BNY Australia Limited (1993) 11 ACSR 356. The ADT dismissed these proceedings on Zeaiter Corporate's application in December 2007. The ADT appeals panel dismissed an appeal against this decision in October 2008: Satchi & Satchi Australia Pty Limited & Anor v Zeaiter Corporate Holdings Pty Limited (RLD) [2008] NSW ADTAP 65.

22. But in January 2008 Satchi & Satchi commenced proceedings in the Common Law Division, Administrative Law List (proceedings 1008/289772) to set aside the ADT's decisions made up to that point with respect to both the first floor and ground floor premises ("the Common Law proceedings").

23. This fresh Supreme Court proceeding seems to have been the result of Zeaiter Corporate's decision to evict Satchi & Satchi from the ground floor premises on 20 December 2007 after the ADT's dismissal of the company's proceedings a few days earlier. Interim relief was granted in the Common Law proceedings staying the effect of the ADT's decision and letting Satchi & Satchi back into possession of the ground floor premises on the basis of undertaking to pay rent.

24. In mid 2008 Zeaiter Corporate challenged Satchi & Satchi's interim orders in relation to the ground floor premises, before Hoeben J. On 9 May 2008 Hoeben J dismissed Satchi & Satchi's Summons in the Common Law proceedings to the extent that it was an appeal from the ADT, finding no error of law in the ADT's decisions: Satchi & Satchi Australia Pty Limited v Zeaiter Corporate Holdings Pty Limited [2008] NSWSC 411. Then on 30 July 2008 Hoeben J dissolved the injunction restraining Zeaiter Holdings from re-entering the ground floor premises: Supreme Court of NSW, Hoeben J, unreported, 30 July 2008.

25. Zeaiter Corporate then re-entered the ground floor premises on 2 August 2008.

26. But in the first half of 2008 and during the period Satchi & Satchi was in occupation under the Court's injunctive relief, it attempted to negotiate a transfer of the ground floor lease to Bitumen. But Bitumen seemed to be unwilling to take the ground floor lease unless all the other disputes were resolved. A three way negotiation between Zeaiter Corporate, Satchi & Satchi and Bitumen failed. Bitumen did not take any lease in the premises and instead opened up an Indian goods store elsewhere in Station Street, Wentworthville, in competition with Satchi & Satchi's shop.

27. The failure of these negotiations led to further legal action from Mr and Mrs Satchithanantham. Mr and Mrs Satchithanantham commenced proceedings in the Equity Division of this Court, proceedings number 2008/279556, ("the Equity proceedings"), these proceedings. The Equity proceedings, commenced on 8 July 2008 primarily related to the ground floor shop at the Station Street address, leased to Satchi & Satchi Australia Pty Limited.

28. Mr and Mrs Satchithanantham claims in the Equity proceedings: that he agreed with Bitumen to transfer the ground floor lease to it; and that Zeaiter colluded with Bitumen to prevent the transfer of the ground floor lease to it. Mr and Mrs Satchithanantham also allege in the Equity proceedings that Bitumen opened a shop in competition with them, which has caused them loss and damage. Mr and Mrs Satchithanantham claim damages of $2,245,690 and seek orders that Bitumen pay their rent on the ground floor premises.

29. The Common Law proceedings were held up between mid 2008 and mid 2010, because Mr and Mrs Satchithanantham and Satchi & Satchi sought more relief in the ADT in respect of the ground floor lease. The ADT dismissed these proceedings on 22 September 2010: Satchi & Satchi Australia Pty Limited v Zeaiter Corporate Holdings Pty Limited (No. 2) [2010] NSW ADT 316.

30. In June 2010 Garling J heard a motion Satchi & Satchi filed for summary judgment in the Common Law proceedings. His Honour dismissed the motion with costs: Satchi & Satchi Australia Pty Limited v Zeaiter Corporate Holdings Pty Limited [2010] NSWSC 715.

31. The repleaded Common Law proceedings were also dismissed, as against the National Australia Bank by Fullerton J in Satchi & Satchi Australia Pty Ltd & Ors v Zeaiter Corporate Holdings Pty Ltd , Supreme Court of New South Wales, unreported, 30 March 2011, and as to the balance by Harrison AsJ on 10 August 2011 ( Satchi & Satchi Australia Pty Limited v Zeaiter Corporate Holdings Pty Limited [2011] NSWSC 892. So, the Common Law proceedings are at an end. Although, various related skirmishes continue: Satchi & Satchi Australia Pty Limited v Zeaiter Corporate Holdings Pty Limited [2011] NSWSC 734 (Schmidt J). The Court must now consider the remaining proceedings in this Court, the Equity proceedings.

32. It is appropriate now to deal with the plaintiffs' motion first and then the defendants' motion.

Mrs Satchithanantham's Motion

33. The plaintiff's motion in summary seeks orders to the following effect:-

(1) the surrender of the existing lease over the first floor and ground floor Station St, Wentworthville premises;

(2) the preparation, execution and registration of the new lease to the plaintiffs;

(3) damages for loss of goods and gross profit against the first defendant;

(4) the same orders against the second defendant;

(5) damages for loss of goods and loss of profit against the third defendant;

(6) Orders (4) and (5) also against the second, fourth and fifth defendants; and

costs against all defendants.

34. The relief sought in Mrs Satchithanantham's motion assumes the validity of the causes of action against the various defendants pleaded in the Statement of Claim. The motion is in that sense a claim for summary judgment. The course of argument before the Court confirms this to be so.

35. Though these proceedings were commenced in the Equity Division, they are similar in substance to the common law proceedings. Although poorly pleaded they do contain allegations about both the first floor premises and the ground floor premises. It is necessary for me to say something more briefly about the form of the Statement of Claim in these proceedings to complete the procedural picture.

36. The plaintiffs commenced these proceedings in Equity on 8 July 2008. The Statement of Claim pleads as against the first and second defendant that they acted against good faith to "defeat" the plaintiffs in relation to a lease, which could be the ground floor or first floor lease. The Statement of Claim also pleads that the third and fourth defendant breached alleged obligations of "specific performance" of an alleged agreement in March 2008 to take over the plaintiffs' business in Station Street, Wentworthville. This appears to relate to the ground floor lease. It is also alleged that the defendants made misrepresentations to the plaintiffs and engaged in misleading and deceptive conduct in relation to the entry into a lease agreement, an allegation which could relate to the first floor lease.

37. The fifth defendant too is alleged to have engaged in unconscionable conduct, and conduct against good faith and to have colluded with other defendants in relation to the granting of the leases.

38. The plaintiff's motion, in my view can be dismissed. Even if one overlooks the great difficulties of trying to make sense of the pleaded causes of action, (a matter of dealt with below on the defendant's motion), this is not an appropriate case for summary judgment.

39. This pleading on its face, is not one where summary judgment would ordinarily be granted on the authorities. The case against the first defendant, is one in effect of a fraudulent conspiracy to defeat the plaintiff's interests in relation to the grant of a lease, an issue which involves strongly contested issues of fact. As against the third and fourth defendants the allegation is one of unconscionable conduct in relation to procuring a lease to replace the original lease granted to the plaintiffs, an issue involving equally contested issues of fact. As against the fifth defendant the case appears to be some kind of allegation of conspiracy to defeat the interests of the plaintiffs, an allegation raising a similar contest.

40. The related common law matter came before Garling J, who stated the legal test for the granting of summary judgment, which the Court must also apply here:-

"The jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion.

The test to be applied has been variously expressed, so obviously untenable that it cannot possibly succeed, manifestly groundless, so manifestly faulty that it does not admit of argument; General Steel Industries Inc v Cmr for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, Barwick CJ said at pp 128 and 129."

41. Mrs Satchithanantham cannot satisfy that test here against any of the defendants. All the pleaded causes of action raise issues of fact which would ordinarily go to trial. They raise serious allegations of personal misconduct against which the defendants would ordinarily have an opportunity to defend themselves. Were the case otherwise allowed to proceed, Mrs Satchithanantham's motion for summary judgment would be dismissed.

42. I have been provided with several documents by Mr Satchithanantham, which have become Ex A, Ex B, Ex C, Ex D. He claims that these exhibits, together with the material attached to the motion, justify the Court making summary judgment orders. In my view they do no such thing. Rather, they contain inherently contentious allegations of fact that would ordinarily be determined at a trial.

43. Finally, as will become apparent shortly, the defendants say on their motion that there has already been a hearing before the Administrative Appeals Tribunal ("ADT") on the same or substantially the same issues as are raised in Mrs Satchithanantham's existing Statement of Claim to the extent that it related to the first floor premises: Zeaiter Corporate Holdings Pty Ltd v Satchithanantham (2008) NSWADT 165. The ADT decision was the result of an oral hearing in which both sides gave evidence and where there were substantial issues of credit determined by the tribunal.

44. The defendants resist the summary judgment application on the grounds that this is not an appropriate case for summary judgment, because the defendants wish to defend themselves at trial. One can anticipate the defendants would, if given the opportunity at a hearing on the Statement of Claim, advance much of the same evidence that they advanced before the ADT. The defendants already demonstrate a capacity and a willingness to contest Mrs Satchithanantham's allegations. This history supports the conclusion that the plaintiff's allegations should not be dealt with now on a summary basis.

45. Accordingly I dismiss the plaintiff's summary judgment motion, with costs.

The First, Second and Fifth Defendants' Motion

46. I now come to the defendants' motion. I have already dealt with the issue of the first plaintiff, Mr Satchithanantham. I have stayed the motion against him, under Bankruptcy Act , s 60. The balance of the defendant's motion relates solely to Mrs Satchithanantham's case. She is not a bankrupt. The same threshold issue does not arise for her.

47. It is necessary to consider the issues on the defendants' motion in the following four baskets: the first is issue estoppel; the second is an argument under UCPR , r 12.11 that the originating process should be set aside; the third is that the Court should strike the proceedings out on the basis they do not sufficiently disclose a cause of action; and the fourth is there should be a stay on the basis that there are outstanding unpaid cost orders in substantially related proceedings.

48. I will deal with the UCPR , r 12.11 issue last. The other issues will dispose of the defendant's motion. So the order of addressing the issues will be: issue estoppel, UCPR , r 14.28; the claim for a stay under UCPR , r 12.10; and then the claim to set aside of the Statement of Claim under UCPR , r 12.11.

49. Issue Estoppel . The question of issue estoppel is quite limited. It only applies between Mrs Satchithanantham and Zeaiter Corporation, between which parties it can be said that in relation to the first floor premises there has been a full trial on the merits, in the trial before the ADT. As between those two parties, there is an issue estoppel on the questions of: whether a first floor lease was validly granted to Mrs Satchithanantham by Zeaiter Corporation; the terms of that lease; and, whether it was terminated. These matters were all determined in the first ADT hearing.

50. But the issue estoppel case is ultimately not decisive. First, the pleadings are so poor that it is difficult to work out what are the present causes of action. The normal way one approaches an issue estoppel case is to compare the pleaded case in the current proceedings with the extent of the findings in the previous proceedings. Here there appears to be a substantial overlap between the two. But, I am not minded to spend much more time attempting to work out the extent of the overlap because for reasons I am about to explain, in relation to the next issue, the pleading will be struck out because it is so poorly pleaded.

51. Secondly it seems to me the issue estoppel point is not decisive in that it only effects one out of five defendants and one out of two plaintiffs. For that reason, it is not dispositive of the proceedings.

52. The Pleadings. The second issue is the question of the pleadings. In my view the statement of claim should be struck out entirely under UCPR , r 14.28. It is embarrassing and does not disclose proper causes of action. Paragraphs 1 to 8 of the pleading deal with the allegations against the first and second defendants. Paragraphs 9 to 19 deal with the allegations against the third and fourth defendants. Paragraphs 20 to 26 deal with the allegations against the fifth defendant.

53. The pleading against the first and second defendants is almost incomprehensible. It sets out a series of disconnected facts, a common theme of which is that the first defendant acted in collusion with the second defendant and engaged in deceptive and unconscionable conduct in relation to the entering into leases. But if it is a claim in equity, to set aside either lease because of unconscionable conduct (despite the fact the first floor lease seems since to have been terminated) it does not clearly plead in equity the nature of the special disadvantage said to be relied upon or the precise acts of alleged unconscionable conduct. If it is a common law pleading of conspiracy, the pleading does not identify what is the precise agreement which constitutes the alleged conspiracy. Nor does it make clear whether the alleged conspiracy was one to use lawful or unlawful means. The Statement of Claim is embarrassing and should be struck out as against the first and second defendants.

54. As against the third and fourth defendants, Mrs Satchithanantham's allegation is one of collusion with other defendants and of cheating the plaintiffs. An allegation of fraud should be clearly pleaded so that the third and fourth defendants are in a position to understand the allegations of serious misconduct being made against them.

55. Indeed the pleading as against the third and fourth defendants, set out between paragraphs 9 and 19, is a kind of stream of consciousness rather than a clear pleading of fraud. It is unacceptable by any standards of pleading, especially in relation to such a serious charge as fraud. The Statement of Claim should also be dismissed against the third and fourth defendants, even though they do not move on this motion with the other defendants. Such a pleading cannot found a proper trial of any issues against these defendants.

56. Similarly as against the fifth defendant, the Statement of Claim alleges acts of collusion with other defendants and of misleading and deceptive conduct. This part of the pleading suffers from the same problems as the other parts and will be dismissed for the same reasons.

57. Ordinarily, a party against whom an order was made for dismissal of a pleading would be given an opportunity to replead. But in this case, as the next argument put under UCPR , r 12.10 reveals, the proceedings should, be stayed. Mrs Satchithanantham will not be permitted to replead whilst the proceedings are stayed.

58. Although the first, second and fifth defendants are represented by counsel and solicitors, the third and fourth defendants are not. But simply looking at the Statement of Claim the issues raised on behalf of the first, second and fifth defendants are equally applicable to the other defendants. If part of the pleading is going to be struck out it seems to me it, should be struck out in relation to all defendants because of its obviously embarrassing form.

59. UCPR , r 12.10 . The first, second and fifth defendants have adduced evidence of a series of costs orders that have been made against Mrs Satchithanantham. Those various costs orders were conveniently set out in Order 4 of the defendant's motion recorded earlier in these reasons. None of those costs orders has been paid.

60. UCPR , r 12.10 provides as follows:-

"12.10 Stay of further proceedings to secure costs of proceedings dismissed

If:

(a) as a consequence of the dismissal of proceedings, a party is liable to pay the costs of another party in relation to those proceedings, and

(b) before payment of the costs, the party commences further proceedings against that other party on the same or substantially the same cause of action, or for the same or substantially the same relief, as that on or for which the former proceedings were commenced,

the court may stay the further proceedings until those costs are paid and make such consequential orders as it thinks fit."

61. This is an appropriate case for the application of UCPR , r 12.10. Although there are many proceedings in which costs orders have been made against Mr and Mrs Satchithanantham or their company Satchi & Satchi Australia Pty Limited, the costs have only been assessed in the first of them, the initial ADT proceedings, in which a costs order was made in the sum of $5,912.50 on 31 August 2006 against Mrs Satchithanantham. I infer that assessment has not taken place in the other matters because it has not been economic for the defendants to incur the costs of the assessment. But the evidence is that neither Mr nor Mrs Satchithanantham has paid the first assessed costs order made on 31 August 2006 in the sum of $5,912.50.

62. In all of these other various proceedings the first costs order made on 31 August 2006 and all the other proceedings are "for...substantially the same cause of action....or substantially the same relief" as in the present proceedings.

63. The Court knows enough of the proceedings before the ADT, the two judgments of Justice Hoeben, the judgment of Justice Garling and the judgment of Associate Justice Harrison to conclude that there is substantially the same cause of action or the same relief involved in these matters as there in the pleadings in the present action. In the matter before the ADT there was a claim for restoration of the first floor premises and damages for unconscionable conduct being sought and claims for misleading and deceptive conduct. Both the same relief and the same causes of action find strong echoes in the current pleading, which I have struck out. The rule in my view applies and I will grant a stay but based only on the costs order for $5,912.50 in the ADT proceedings.

64. The non-payment of the sum of $5,912.50 due on the 31 August 2006 costs order together with the other many unassessed costs orders made thereafter, are a basis for the exercise of UCPR , r 12.10 jurisdiction. UCPR , r 12.10 operates in circumstances where "a party is liable to pay the costs of another party in relation to those proceedings" as a consequence of their dismissal, whether or not the costs are assessed. The exercise of the discretion to stay proceedings until costs orders are paid, will more readily occur, where there is a precise sum assessed and due for costs and the costs have been the subject of a demand and not paid. But that is not a necessary requirement for the exercise of the discretion.

65. Here, costs were assessed and a demand was made for assessed costs in relation to the first judgment. The non-payment of that costs order, combined with the many other subsequent unpaid costs orders, shows the plaintiffs and the company they control, Satchi & Satchi Australia Pty Limited are prepared to keep initiating proceedings and generating costs orders against themselves apparently in the belief that they will never be enforced. Mrs Satchithanantham commenced these proceedings before those costs were paid. The history of these proceedings, makes this an appropriate case for the making of an order under UCPR , r 12.10.

66. UCPR, r 12.11 . The issue in relation to UCPR , r 12.11 is all that remains. The defendants argue that the originating process should be set aside because it does not conform, with the requirements for an appeal to this Court against a decision of the ADT, which in substance, it is said, that it is. Although the Statement of Claim in form is not couched as an appeal against the ADT decisions, were that the only problem with the plaintiff's case it would probably be curable. Moreover, it seems now to be unnecessary to determine this issue. I have already struck out the pleading on other grounds and stayed the proceedings because of the non-payment of costs.

67. I will make the following orders, directions and notations:-

1. Make Orders 3 of the defendants' Notice of Motion but strike out the whole of the Statement of Claim, including as it is pleaded against the third and fourth defendants and no leave is granted to file any further Statement of Claim in these proceedings.

2. Make Order 4 of the defendants' Notice of Motion dated 14 April 2011.

3. Order Mrs Satchi thanantham, the second plaintiff, to pay the first, second and fifth defendants' costs of the plaintiffs' motion and the first and second defendants' motion.

4. Order these proceedings be listed before me at 9.30am on Tuesday, 21 February 2012 for mention with a view to their final dismissal if the amount of the order for costs of $5,912.50 described in Order 4(a) of the first, second and fifth defendants' motion of 14 April 2011 is not paid before that date.

5. Order a copy of this judgment and a note of the judgments of the other judges of this Court which are identified earlier in these reasons, be referred to the Attorney General for possible action under the Vexatious Proceedings Act (NSW) 2008 against the first and second plaintiffs.

6. Note that so far as the first plaintiff is concerned these proceedings are stayed by reason of the operation of Bankruptcy Act 1966 (Cth), s 60(2).

7. Dismiss the plaintiff's motion dated 28 January 2011.

68. The matter is being listed for 9.30am on Tuesday 21 February 2012 with a view to final dismissal, if the cost orders, the subject of Order 4(a) in the motion, are not paid. If a dismissal occurs on that day, such dismissal would not take place under UCPR , r 12.11. Rather the possibility of such dismissal would arise under a combination of the operation of the stay for non-payment of costs and the fact that no amended pleading had been filed. Proceedings must be dismissed in due course against a party, if a party's Statement of Claim has been struck out and the party is unable to file another Statement of Claim, because the party is unwilling to pay the costs orders that have enlivened the stay under UCPR , r 12.10.

Vexatious Proceedings Act 2008

69. I am unsure whether the Attorney General is aware of the course of these proceedings. Their history set out above, and the other history set out in the judgments of the other judges of this Court to which I have referred, leads me to conclude this matter should be referred to the Attorney General for investigation as to whether proceedings should be initiated against Mr and Mrs Satchithanantham under the Vexatious Proceedings Act 2008.

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