Grace has recently been successful in a decision before the Supreme Court in Singh v The Owners – Strata Plan No 11723 and Ors  NSWSC 1595 where orders were made pursuant to the Vexatious Proceedings Act 2008 (NSW) against a lot owner, prohibiting him from instituting any further proceedings in NSW (known as a vexatious proceedings order) against the Owners Corporation and his bankruptcy trustees.
The Owners Corporation had been involved in litigation with the lot owner for over 3 years in various state and federal Courts. Initially the dispute arose in the Local Court from unpaid strata levy arrears which were a relatively modest amount. However, due to the nature of the lot owner who attempted to re-litigate the same issues which had been decided against him in various Courts, the Owners Corporation had incurred significant legal costs in defending the lot owner’s applications.
Historically, applications for orders pursuant to the Vexatious Proceedings Act 2008 (NSW) are made by the Attorney-General to prohibit persons from wasting the Courts’ resources and in the interest of protecting the public at large. Since the enactment of the Vexatious Proceedings Act 2008 (NSW), only 14 persons have been subject to an order prohibiting them from commencing proceedings in NSW.
Further, pursuant to section 8 of the Vexatious Proceedings Act 2008 (NSW), the Court can take into account proceedings which have been instituted or conducted in “any Australian Court or tribunal” including the CTTT. However previously, applications for orders against a vexatious litigant were only available under section 84 of the Supreme Court Act 1970 (NSW) which prescribed that the Court should consider a person’s litigation history in Court proceedings only.
Before exercising a discretion to make orders under the Act, the Court must first be satisfied that a person has:
- instituted or conducted;
- “vexatious proceedings” as defined in the Act; and
- has done so “frequently”.
It has been said that an order pursuant to the Vexatious Proceedings Act 2008 (NSW) is an “extreme remedy” and a serious matter to deprive a litigant of access to the Courts. Even if the Court is satisfied that its jurisdiction to make the vexatious proceedings order is enlivened, it is not bound to do so.
In this case, His Honour Justice Slattery of the Supreme Court was satisfied that the lot owner had instituted 14 vexatious proceedings against the Owners Corporation and his bankruptcy trustee over 2 years and considered this to be “frequently”.
Consequently, the Court made orders prohibiting the lot owner from commencing proceedings in any Court or tribunal in NSW against the Owners Corporation and his bankruptcy trustee, in recognition of the “forest of litigation” which these parties had been subjected to.
This is the first decision where a vexatious proceedings order has been made in favour of an owners corporation and is an example of the relief which may be available to an owners corporation.