Pilling v Shajahan Karim LLB[2022] QDC 167

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This application, filed 15 November 2021, is for judgment in default of the appearance of the First, Third and Fourth defendant in respect of the amended claim and amended statement of claim filed 24 March 2021.
2. [2]
   It is necessary to note that prior to the filing of those amended documents and by application filed on 12 August 2020, the plaintiff sought similar relief in respect of the claim and statement of claim filed on 29 August 2019. That application was dismissed on 3 December 2020.
3. [3]
   It is necessary to note that in the dismissal of that prior application a number of particular difficulties confronting the applicant were noted. Apart from noting an inapt attempt to avoid the rules relating to service of process outside Australia and to relief upon rule 117 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”), as it relates to informal service, it was also particularly noted that specific impediments to the “approach of the applicant to her claims require[ed] much and careful consideration.” It was specifically noted that:

1. (a)
   there was considerable difficulty in discernment of any appropriate basis upon which it is asserted that the originating process was amenable to service outside of Australia, without leave first obtained pursuant to UCPR 129F;^[1]
2. (b)
   there was some particular need to have regard to the requirements of UCPR 128, as it relates to any service of originating process outside of Australia;^[2] and
3. (c)
   there would in any event remain difficulties to be addressed in respect of:

1. (i)
   addressing the requirements of UCPR 130J to 130L, in respect of any service abroad, and UCPR 129B as to leave to proceed;^[3] and
2. (ii)
   the applicant’s approach in seeking relief in respect of sums which were not in the nature of a debt or liquidated demand and the need to address the particular rules which might be appropriately engaged in Division 2 of Part 1 of Chapter 9 of the UCPR.^[4]

4. [4]
   Subsequently and on 24 March 2021, the applicant filed an amended claim and an amended statement of claim.  Although the amended claim is endorsed under the hand of the applicant’s solicitor as being “Amended Pursuant to Rule 375”, there has been no application to the Court in that respect.^[5]
5. [5]
   As it appears, application was made to the Registrar of the Supreme Court of Queensland for service abroad of that amended claim under the Hague Convention,^[6] with the following results:

1. (a)
   a “Certificate – Attestation” filed in this Court on 29 June 2021 and stamped as issued by the “Senior Courts of England and Wales Foreign Process Section” on 1 June 2021, in respect of service on Karim Shajahan, on 14 May 2021, by post to 82 Church Lane Handsworth, Birmingham B20 2ES and stated to be “good service under rule 6.3(1)(c) of the Civil Procedure Rules of England and Wales”; and
2. (b)
   three documents styled “Certificate – Attestation” and filed in this Court on 20 October 2021. Each is signed as issued by a person described as “Contracting Agent for the Office of International Judicial Assistance ABC Legal Services 633 Yesler Way, Seattle, WA 98104”. In two instances, it is certified that documents have been served in conformity with Article 6 of the convention and in accordance with Article 5(a):

1. (i)
   in respect of service on 25 June 2021 on “Detroit Investment Corp aka Detroit Investment Co,; Et Al” by the acceptance of a named person at “13407 Farminton Rd. Suite 207, Livonia, Wayne Country, MI 48105”; and
2. (ii)
   in respect of service on “Sovereign Estates LLC” by the acceptance of an unnamed employee at “C/O Abe Barlaskar, of Plunkett Cooney, Attorneys, 38505 Woodward Ave Ste. 100, Bloomfield Hills, Oakland County, MI 48304”; and
3. (iii)
   In the third instance, the “Certificate – Attestation” is dated 11 June 2021 and certifies that service was attempted but not effected upon “Sovereign Michigan LLC aka Sovereign & Co,; Et Al” at the address “24333 Southfield Rd. Suite 102, Southfield, Oakland Country, MI 48075”, due to this being “the wrong address for this business”, with a further notation of being “unable to locate alternative address for service”. ^[7]

6. [6]
   Accordingly, this further application effectively seeks judgment in default of appearance upon claims made respectively against the First, Third and Fourth defendants,^[8] as follows:

1. “2.That on the reading of the documents read and relied upon by the Plaintiff, Judgments be given to the Plaintiff against the First, Third and Fourth Defendants in the sums of $645,560.62, $91,861.32 and $293,547.79 respectively or in such other sums as to the Court may seem just, plus interests upon the set judgments in accordance with S 58 of the Civil Proceedings Act and in relation to that portion of the Judgment relating to Claim One against the First Defendant of the Plaintiff’s Claims at the rate of 20% per annum”.

And that these defendants “jointly and severally pay the costs of the plaintiff of these proceedings (except for the plaintiff’s costs of and incidental to the application filed the 12^th August 2019) on an indemnity basis”. 

7. [7]
   However, and for the purpose of the application of the UCPR, it remains necessary to understand what was served and in that regard it may be noted that:

   1. (a)
      In respect of each of the certificates issued at Seattle Washington, it is expressly noted that the documents served (or to be served) were:

“Amended Claim filed 24/03/2021; Amended Statement of Claim filed 24/03/2021; Affidavit of Jurisdiction by Christopher Parker Reeve Sworn 07/08/2021”.^[9]

2. (b)
   In respect of the Certificate issued from the Senior Courts of England and Wales, there is an attached copy of the documents, being the amended claim filed 24 March 2021, the amended statement of claim filed 24 March 2021 and the affidavit of Christopher Parker Reeve sworn 20 August 2021.^[10]  Copies of these documents appear under cover of a form apparently generated by the “Foreign Process Section of the Royal Courts of Justice Group, Queen’s Bench Division” and addressed to the Supreme Court of Queensland and another single page document, which appears to bear some markings placed on it in England. It contains, a heading: “SUMMARY OF DOCUMENT TO BE SERVED” and appears to be in the nature of at least part of a document required by UCPR 130D in respect of an application for engagement of the Hague Convention service processes. Notably it refers to the “Nature and purpose of the document” as “Recovery of Debt” and “Nature and purpose of the proceedings and, where appropriate, the amount in dispute: Recovery of debt AUD$522,579.57 plus further interest”. There is also reference to the amendment of the time for entering appearance, by notice of intention to defend, to 42 days, as reflected in UCPR 129.

Discussion

8. [8]
   In the light of the effort now directed, on behalf of the plaintiff, to engagement with a form of service recognised in the UCPR, in reference to the Hague Convention, it is convenient to commence the discussion of the issues arising on this renewed application by again noting that, in dealing with the prior application and what was there noted to be a misguided attempt to avoid engagement with the formalities and requirements for service outside of Australia, as set out in the UCPR, that there was an exhortation by this Court that “it is clear that the approach of the applicant to her claims requires much and careful reconsideration”.^[11]  In the context of some examination then undertaken of the requirements of the UCPR in respect of service outside of Australia, including those provisions which seek to implement the Hague Convention, four particular difficulties were expressly noted:

1. The absence of compliance with UCPR 128, in respect of service of any compliant notice, as required by that rule;^[12]
2. Difficulty in discernment of any appropriate basis for assertion that the originating process was amenable to service outside of Australia, without leave having been first obtained pursuant to UCPR 129F’^[13]
3. The necessity, in any event, pursuant to UCPR 129B (as made applicable by UCPR 129H), for an application for leave to proceed in the absence of the filing of a notice of intention to defend;^[14] and
4. The difficulties in then identifying any appropriate rule under which default judgment might be granted, as sought, noting that most of the plaintiff’s claims do not appear to be for a debt or liquidated demand.^[15]

9. [9]
   In consideration of the applicant’s efforts in engaging with and achieving some service pursuant to the processes reflective of the Hague Convention, it has been necessary to reconsider those issues in the light of the amended claim and pleading and further material relied upon in support of this renewed application.  Having done so, it must, unfortunately, be bluntly observed that little, if anything, has occurred in respect of addressing these particularly identified difficulties, in the renewed application.
10. [10]
    First it is to be noted that even were they able to be considered as validly made pursuant to the UCPR, the amendments to the claim are only to the following effects:

    1. (a)
       To add to the names of the second and third defendants, the following respective further nomenclature: “a.k.a. Sovereign & Co” and “a.k.a. DETROIT INVEST”;
    2. (b)
       To add reference to the third defendant in the second claim, so that it becomes a claim for:

“unjust enrichment received by the First Defendant as a result of the First Defendant taking advantage of his position as a Claimant’s Solicitor and Agent and Attorney in purchasing the claimant’s property [in Michigan] for the sum of US$65,000 but in fact the first defendant immediately or contemporaneously on sold [the property] to the Third Defendant for the sum of US$118,000 (A$174,114.90), without notice or knowledge of the plaintiff, on the nineteenth day of July 2019, receiving, keeping and retaining the difference of US$53,000 for the First and Third Defendant’s own use and benefit in breach of the First and Third Defendant’s duties of upmost good faith to the plaintiff, to act solely in the interest of the plaintiff.”

And adding the following problematic, if not contradictory, allegations, that:

1. (i)
   “(ci) The Third Defendant was and is wholly owned and controlled by the First Defendant and as his alter ego owed the plaintiff duties”; and
2. (ii)
   The plea for interest is:

“ … calculated at A$87,246.92, as monies had and received by the First and Third Defendants but denied to the Plaintiff, who had been deprived of the use of that interest to the date of this claim and to the date of payment or Judgment.”

And also adding the words “and therefore was entered into and arose in this district” to the assertion that the contract for the sale of the property in Michigan “was entered into having been executed by the Plaintiff in this District after execution of the same by the First Defendant”;

3. (c)
   To add the named Fourth Defendant “as managing agent” in respect of the third, fourth and fifth claims. Claims three and four are therefore expressed as made against each of the First, Second and Fourth Defendants and the fifth claim, is then expressed as follows:

“The Plaintiff also claims exemplary or punitive damages in the sum of $A100,000.00 of (sic) such other amount as the Court may allow against the First Defendant caused to the Plaintiff and arising from the First and Fourth Defendant’s breach of their fiduciary duties owed to the Plaintiff whilst the First Defendant was acting as her Solicitor and/or Agent in relation to her financial dealings and circumstances, and Fourth Defendant as managing agent.”

4. (d)
   As to the third and fourth claims:

   1. (i)
      The third claim is expressed to be for a total of A$82,169.74, in respect of what is alleged as improper and unlawful deductions from the:

“plaintiff’s monies …. for alleged repairs or improvements or other expenses alleging (sic) relating to [other identified properties of the plaintiff in Detroit Michigan] from the 19^th day of March 2014 to the 9^th March 2018, without the Plaintiff’s prior knowledge or approval, and for which no proper accounting for or evidence of the actual payees of those monies has been given by the Defendants to the Plaintiff.”

This includes a calculation for interest, apparently at the rate of 20%; and

2. (ii)
   The fourth claim becomes the following conglomeration:

“The Plaintiff also claims damages arising from the loss of a Contract of Sale (“the Decatur Contract”)of the Plaintiff’s property at 8040 Decatur Street Michigan USA for US$27,900.00 to Detroit International Holding LLC which was frustrated by the actions of the First and Second and/or Fourth Defendants who placed a tenant in the property after termination of the First & Second and Fourth Defendants’ Management Agreement on 22/12/2018 or 30/10/2018 and execution of the Decatur Contract, including such rent as was or should have been payable by the tenant at US$500.00 per week from 30^th May 2019 to the date hereof of (27^th August 2019) twelve weeks or US$6,000.00 plus repairs of damage to the property caused (sic) the tenant (US$2,420.00) plus interest on US$27,900.00 from 30^th May 2019 to the date hereof of (US$36,320.00) (A$ 41,196.81) at the court rate totalling A$54,330.91 at the current exchange rates.”; and

5. (e)
   To add to the total of A$522,679.57 (and interest at 20 percent per annum from 27 August 2019 to the date of judgment) to the summary of the plaintiff’s claims.

11. [11]
    Apart from amendments reflective of these amendments to the claim, the statement of claim was amended to also allege that:

    1. (a)
       the first defendant was and also is “a director and sole shareholder of the Second & Third & Fourth Defendants”;
    2. (b)
       in respect of Claim One, that:

1. (i)
   “13A. the agreement was therefore entered into and subject to the jurisdiction of this district.”; and
2. (ii)
   to include an allegation that the indebtedness in respect of the retention of US$50,000 plus US$20,000 “net returns”, was that of the “First and/or Second Defendant”;^[16] and

1. (c)
   in respect of Claim Two, that the contract of sale of the plaintiff’s Michigan property “had already been executed by the Third Defendant constituting an offer to the Plaintiff which she accepted by signing in this district.  The contract is therefore entered into and governed by the laws of this district.”^[17]

12. [12]
    Accordingly, it is necessary to observe, that it may be seen that little, if any attention, has been given to the previously noted problems in respect of this particular proceeding.  That extends beyond the difficulties created by the style of pleading adopted and particularly extends to the necessity to have regard to the provisions of UCPR 129F and particularly UCPR 129F(r), in requirement that all of the included claims be within that provision for service without the leave of the court to be permissible.^[18] 
13. [13]
    However, given the additional efforts which have been devoted to what is now reflected in this renewed application and the fact that some form of service has been effected, some time has been taken to consider whether there is any prospect that UCPR 130J is satisfied and whether it may be appropriate to grant leave to proceed pursuant to UCPR 129B. Unfortunately, the conclusion must be that there is no properly identified basis for doing so, for substantially similar reasons as were noted to be difficulties confronting the applicant, in the previous decision. In addition there is now the compounding complication of what appear to be unauthorised amends to the claim and statement of claim.
14. [14]
    First and foremost, there is an absence of evidence to enable a conclusion that there has been compliance with the requirements of UCPR 128, which provides:

“128 Notice to person served outside Australia

3. (1)
   If a person is to be served outside Australia with an originating process, the person must also be served with a notice in the approved form informing the person of—

1. (a)
   the scope of the jurisdiction of the court in respect of claims against persons who are served outside Australia; and
2. (b)
   the grounds alleged by the plaintiff to found jurisdiction; and
3. (c)
   the person’s right to challenge service of the originating process or the jurisdiction of the court or to file a conditional notice of intention to defend.

3. (2)
   Also, if the service of the originating process is by leave of the court, the notice must list the affidavits relied on to obtain the court’s leave.”

These requirements are of some significance in that it may be noted that for the applicant to have any judgment which is sought, she must obtain the leave of the court to proceed, in order to do so and the power to grant that leave, as expressed in UCPR 129B, is premised upon the precondition:

“If a claim is served on a person outside Australia and the person does not file a notice of intention to defend”.

15. [15]
    The intent and importance of UCPR 128 is clear.  It is to provide for notification to the person or entity to be served as to the efficacy of the process, in the sense of specific identification of the jurisdictional basis upon which it has been issued and served.  That is, in identification of the basis upon which any valid judgment or order might emanate and potentially be enforceable in the jurisdiction where service is effected.
16. [16]
    There is no evidence as to whether or not any such notice was prepared by the applicant in conjunction with the submission of documents to be served through the Hague Convention process. More significantly, there is a complete absence of any reference^[19] to any such notice in any of the certifications as to the overseas service of documents.^[20]
17. [17]
    The applicant presses that the requirements are satisfied by the materials which were served.^[21] Whilst it may be accepted that there is a notation at the conclusion of the served amended claim which may serve to constitute notice in substantial compliance with UCPR 128(1)(c), there is much greater difficulty with the contention that the requirements of UCPR 128(1)(a) and (b), as to specification of the scope of the jurisdiction of this Court for claims served outside of Australia and the grounds alleged to found such jurisdiction, were effectively satisfied by the service of a copy of the solicitor’s affidavit sworn 20 August 2021. It might be expected that for service claimed to be authorised under UCPR 129F, as is the case here, there will be some clear and succinct identification of the cause(s) of action pursued and the particular basis upon which UCPR 129F is engaged. Without descending to the detail particularly set out in paragraph 3 of that affidavit as to the jurisdiction of the Court, it may be observed that the content serves neither purpose. There is reference to the execution of a number of documents by the applicant here at Tewantin or Noosaville but in terms of any identification of causes of action, appears to introduce some confusion and reference to circumstances which are not within the purview of the claim or statement of claim. It is of course the jurisdiction of the Court to entertain the claim as further pleaded in the statement of claim which must be the subject of the necessary explanation and notification.
18. [18]
    It is therefore not established that the mandatorily expressed requirements of UCPR 128 have been satisfied, so that for the purpose of application of UCPR 129B, it is established that there has been service of a claim on a person outside of Australia.
19. [19]
    Secondly, there remains the difficulty in identification of which of these claims does properly fall within the terms of UCPR 129F and more particularly, UCPR 129F(b), as the only identifiable alternative of potential application.  This problem has a clear linkage with that relating to the application of UCPR 128, noting the requirements for listing of the affidavits relied upon to obtain any necessary leave for service and to explain the grounds upon which the jurisdiction of this Court is founded, which it would be expected would require reflection of any determination to grant such leave pursuant to UCPR 129G and particularly the satisfaction of the Court as to the requirements of UCPR 129G(4):

“The court may grant leave under this rule if satisfied—

1. (a)
   the claims has a real and substantial connection with Queensland;
2. (b)
   Queensland is an appropriate forum for the trial; and
3. (c)
   in all the circumstances the court should assume jurisdiction.”

20. [20]
    At no stage, has the applicant sought to make any such application for leave to serve her claim outside Australia and therefore she has not sought to address the necessary criteria. On the contrary, through some amendments made to the claim and statement of claim and in this further application, there is discernibly dogged persistence in reliance upon her purported right to do so pursuant to UCPR 129F, despite the prior observations of the Court as to apparent difficulty in identification of any sufficient basis for that.^[22]
21. [21]
    The particular emphasis which the applicant seeks to put upon the fact of her execution of documents and particularly the “Joint Venture Agreement”, here at Noosaville, tends to confirm particular reliance upon UCPR 129F(b). However and even if it may be discernible that there is any claim which is actually “for the enforcement, recission, dissolution, annulment, cancellation, rectification, interpretation of or other treatment of, or for damages or other relief in respect of a breach of contract”, it does not follow that the applicant’s execution of any such contract, which on any view would have been to be performed by parties in America and in respect of property situated in America, “was made or entered into in Queensland” or otherwise within the purview of UCPR 129F(b).^[23] As was previously noted, the critical consideration will be as to the method of communication of the applicant’s acceptance of the offer made by the overseas situated party and therefore an understanding of where the acceptance was communicated to the offeror. In her affidavit,^[24] the applicant attests to first communicating her acceptance of the “Joint Venture Agreement” to the First Defendant by telephone and then emailing him the executed copy. As has been previously observed, this is not indicative of a basis for any finding that this contract “was made or entered into in Queensland”.^[25]
22. [22]
    Quite apart from that difficulty, there is, as was the subject of previous observation,^[26] significant difficulty in discerning, particularly from the absence of clarity of the pleadings, as to whether any of the claims would fall within the parameters of UCPR 129F(b), for instance in terms of being for damages for breach of any such contract as may have been made or entered into in Queensland. Neither could that position be determined by, and it is not meaningfully advanced by, the applicant’s affidavit filed in support of this application.^[27]
23. [23]
    However, from the materials, it may be discerned that an important aspect of the applicant’s dealings with the First Defendant and her investment in real estate situated in Michigan, is what is described as a “Joint Venture Agreement” between the Plaintiff, described as “The Investor Partner”, and the Second Defendant, described as “Developer”, and expressed to be made on 1 October 2014.^[28] For present purposes, it suffices to note the following as to the recitals and some of the operative clauses of that written agreement:

“WHEREAS:

1. I.The Investor Partner and Developer have agreed to enter into a (sic) Agreement for investing in real estate development projects (“the Development Project”).

1. II.The Properties for the Investment Project are Properties set out in Schedule 1 to this Agreement or in the event Schedule 1 is not completed the property to be identified by the Developer pursuant to Clause 4 (“the Property”).

1. III.The Investor Partner has agreed to contribute funds and the Developer has agreed to contribute management and expertise to the Investment Project.  The Developer will provide further equity as required for the projects.

1. IV.Developer has agreed to pay the Investor Partner a fixed return from the Investment Project by renovation or development, and sale of the Property within twelve months of the date of entry of the contract for the purchase of the Property (the “Term”).”

….

1. 1.THE INVESTMENT PROJECT

This Agreement has been entered into for the purposes of the acquisition, development, management and sale of the Property and the Investment Project documented by this Agreement and shall continue until termination (in accordance with clause 6.2).

….

1. 2.2The Developer will purchase the Property in the Developer’s name with the Investor Partner having a legal interest in the property.  The expenditure for the development cost of the Property will be funded by external sources of funding by the Investor Partner.

1. 2.3The Property shall be developed as the parties mutually agree and sold within the Term.

….

1. 3.1The Investor Partner will provide all funds and arrange all funding for the purchase of the Property and its renovation or development, as an initial contribution, including and without limitation:

1. a)
   The purchase price for the Property, if mutually agreed by Investor Partner and Developer

1. b)
   Purchase expense including, legal costs and disbursements, the cost of carrying out and (sic) due diligence enquiries, pest and building report, survey report, searches and certificates, for completion of the purchase of the property.

1. c)
   Payment of taxes, lien and levies required on completion of the purchase of the Property.

1. d)
   Insurance for the building and improvements.

1. e)
   Costs for Full Development Building costs to include any and all repair, renovation, maintenance or reinstatement of the property

1. f)
   Costs for maintaining the property until resale.

….

1. 4.1The Developer will perform obligations (the “Developers Obligations”) to the Investment Project, including to:

1. a)
   Identify a suitable property for purchase, negotiate the terms for purchase, and assist in completion of the purchase of the Property;

1. b)
   Engage any specialist professionals needed for the Investment Project;

1. c)
   Prepare and appoint construction team for carrying out of the full development work for the Property;

1. d)
   Arrange for the continued repair and maintenance of the Property;

1. e)
   Arrange for the marketing and sale of the Property.

….

1. 4.2The Developer shall carry out its Obligations to the Investment Project:

1. a)
   Without charge by it or its directors of a management fee or other fee;

1. b)
   Act promptly and expeditiously;

1. c)
   In its own right and as the authorised agent for the Investor Partner to carry out any work or sign contracts pursuant to investment obligations.

Developer may arrange that those obligations be performed by itself, its employee, agents or contractors.

1. 5.NET RETURNS

1. 5.1To the best of the Developers endeavours and efforts the Investment Project is aimed to provide a NET RETURN OF 20% (TWENTY PERCENT) of funds invested by the Investor Partner.  The Net Return will be realized (sic) upon the sale of the each (sic) investment property by the developer.

1. 6.TERM AND TERMINATION

1. 6.1The Developer will use all reasonable endeavours to complete the renovation or development and sale of the Property during the shortest possible term.  However in doing so, the Developer shall not be liable for any loss by reason of being unable to complete or development and sale of the Property during the Term.

….

1. 9.GENERAL OBLIGATIONS AND ACKNOWLEDGEMENTS

1. a)
   Both Parties accept the inherent “risks” associated with the real estate investment, including development of the Property, the lease of the Property and the sale of the Property and accept the risks associated and understand that a loss is a possibility.

….

1. 10.1At any time after the Term has elapsed and the Property is not sold either party (the “selling party”) shall have the right to offer or sell their interest in the Property or in the Investment Project (“their interest”) to the other party on the following terms:

1. 10.2The selling party gives notice to the other party (the “purchaser party”) of intent to sell their interest.  The selling party may only offer the whole of their interest.  The purchaser party may elect to proceed or not to proceed further.  In the absence of election, the purchaser party is taken to have elected to proceed no further.

1. 11.DISPUTES

In the event of any dispute between the parties about the meaning, or interpretation of any provision of this Agreement or without limitation such matter or dispute will be referred for determination to the courts of the State of Michigan and whose decision will be final and binding on the parties.

….

1. 12.4This Agreement shall be construed in accordance with the laws of the State of Michigan”.

….

1. 14.DUTIES OF THE PARTIES

The Parties shall:

1. a)
   Use their best endeavours to promote the best interest of the Joint Venture;

…

1. d)
   Be just and faithful to the other Party in relation to all transactions in respect of the Join (sic) Venture and give to the other Party a true account of the same when and as often as shall be reasonably required; ….”

24. [24]
    It may then be observed that:

    1. (a)
       In respect of Claim One, this appears to be pursued against the First and Second Defendants in respect of the Plaintiff’s investment of US$50,000 pursuant to the Joint Venture Agreement. However, what appears to be alleged:

       1. (i)
          in contrast to the written Joint Venture Agreement, is that the First Defendant had agreed, orally and by email, to invest US$50,000.00 (the principal amount) of the plaintiff’s money and guaranteed the return of the principal amount and 20% interest per annum;
       2. (ii)
          whereas and as there is necessarily reliance upon the Joint Venture Agreement, as between the Plaintiff and Second Defendant, this does not appear to indicate any such guarantee or agreement.
    2. (b)
       In respect of Claim Two, it appears to be alleged that the First and Third Defendants were unjustly enriched by US$53,000.00. However and as expressed, this claim defies sensible interpretation, in that it is alleged that:

“the First Defendant immediately or contemporaneously on sold Westchester to the Third Defendant for the sum of US$118,000.00 (A$174,114.90), without notice or knowledge of the Plaintiff, on the 19^th day of July 2019, receiving, keeping and retaining the difference of US$53,000 for the First and Third Defendant’s own use and benefit in breach of the First and Third Defendant’s duties of upmost (sic) good faith to the Plaintiff, to act solely in the interest of the Plaintiff.”

Reference to the materials included in the applicant’s affidavit,^[29] indicates that in January 2017 the plaintiff executed a written contract to sell the “Westchester “ property to the Third Defendant and that she has subsequently located reference, in an American real estate website, to a purported sale of the same property on 19 July 2017, for $118,000,^[30] without identification of the purchaser nor any reference to her sale to the Third Defendant, as the entire basis for this claim.

3. (c)
   In respect of Claim Three, it is alleged that the First Second and Fourth Defendants are, conjointly, liable to the Plaintiff for US$45,105, in respect of:     

“ … monies deducted from or taken from the Plaintiff’s monies by the First Defendant as Solicitor and/or Agent and/or Attorney and by the Fourth Defendant as managing agent for the plaintiff and paid  to the Second and/or Fourth Defendant for alleged repairs or improvements or other expenses alleging(sic) relating to [the “Decatur” and “Westchester” properties] without the Plaintiff’s prior knowledge or approval , and for which no proper accounting for or evidence of the actual payees of those monies has been given by the Defendants to the Plaintiff.”

However, it is not, in the context of what has been noted as to the Joint Venture Agreement, clarified as to how this claim arises under that agreement, or otherwise, particularly having regard to the considerations that:

1. (i)
   by clause 3.1(e) of the joint venture agreement, the plaintiff undertook to provide all funds for, inter alia, “Costs for Full Development Building costs to include any and all repair, renovation, maintenance or reinstatement of the property”; and

2. (ii)
   the monies “otherwise owed to the plaintiff” are pursuant to clause 5, the ‘Net Return’ (which was intended to be 20%) and to “be realized upon the sale of the (sic) each investment property by the developer”.

4. (d)
   In respect of Claim Four, it is alleged that the First Defendant, on behalf of all defendants, ended their engagement as managing agents, on 30 October 2018, but that later in 2019, it was discovered that the First, Second and/or Fourth defendants had permitted a tenant to reside in the “Decatur” property. It is claimed this caused:

1. (i)
   the frustration of a contract of sale in relation to the “Decatur” property and dated 30 May 2019, which was the result of the engagement of another American based agent, which was conditional upon vacant possession, and loss of US$27,900.00 being amount of the purchase price;
2. (ii)
   damage to the “Decatur” property to the extent of US$2,420.00; and
3. (iii)
   the plaintiff also claims that rent estimated at US$6,000.00 was not accounted to her in respect of that tenant.

However, the precise basis of these broad allegations is not made clear.

5. (e)
   In respect of Claim Five and although, as has been noted there has been amendment of the claim to add reference to the Fourth Defendant, it is expressed as a claim made against the First Defendant, for exemplary or punitive damages. In the statement of claim it is pleaded as follows: 

“The Plaintiff also claims exemplary or punitive damages in the sum of $A100,000.00 of (sic) such other amount as the Court may allow against the First Defendant caused to the Plaintiff and arising from the First and Fourth Defendant’s breach of their fiduciary duties owed to the Plaintiff whilst the First Defendant was acting as her Solicitor and/or Agent in relation to her financial dealings and circumstances, and Fourth Defendant as managing agent.

25. [25]
    Thirdly and in respect of what the applicant seeks to achieve, being summary judgment for specified amounts, expressed in respect of recovery of a debt or liquidated sum, there remains the difficulty that as far as the claims of the applicant may be understood, it is far from clear that this is actually the case and apparent that at least some of these claims, if sustainable, may require some assessment as to the proper award of damages.
26. [26]
    It is unnecessary to attempt any explanation of what otherwise appears to be substantial claims for interest on the sums claimed by the applicant.  This review of the applicant’s claims is adequate, however, to demonstrate a particular difficulty in understanding any clear basis upon which the applicant claims against any particular defendant, in respect of any of the separately identified claims and particularly as to whether any such claims might be “for the enforcement, rescission, dissolution, annulment, cancellation, rectification, interpretation or other treatment of, or for damages or other relief in respect of a breach of, a contract”, so as to be within the application of UCPR 129F(b). The problem is not so much in the identification of the nature of the relief which the applicant claims, nor in there being an absence of any expression of a reason for seeking such relief, but rather in any cognisable explanation, or at least precisely identified cause of action, or identification of a legal and factual basis, upon which entitlement to such relief might be founded.^[31]
27. [27]
    For any application of UCPR 129B and granting of leave for the applicant to proceed, it is necessary to focus upon the position in respect of “the person served” and therefore each individual defendant.  As has been noted, the application before the Court is not actually addressed to the application of UCPR 129B.  But to the extent that it is sought that the applicant has judgment in default of the appearance of any defendant:

1. (a)
   such is not sought against the Second Defendant;
2. (b)
   in the context of the multiplicity of claims made against the First Defendant, UCPR 129F(r) looms large and particularly noting the apparent difficulties in bringing either of Claims Two or Three, in particular, within the parameters of UCPR 129F;
3. (c)
   to the extent that there may be any disclosed basis for a claim against the Third Defendant, the same observation is apposite; and
4. (d)
   quite apart from the problematic amendment to add the Fourth Defendant, in respect of Claims Three and Four, there is no elaboration in the statement of claim as to how the Fourth Defendant may have become liable to the plaintiff.

Conclusion

28. [28]
    Accordingly, the only appropriate conclusion is that this application must be dismissed, as misconceived.  As noted, a fundamental difficulty has been the absence of attention to the requirements of UCPR 128, in the context of the problematic expression and pleading of the claims of the applicant and what appears as a problematic approach in avoidance of any reliance on UCPR 129G and instead, ineffectual reliance upon UCPR 129F.
29. [29]
    Although it would remain for consideration in the context of the materials upon which any approach to engage UCPR 129G might be pursued, the observations made by this Court, effectively now for the second time, might well indicate that some very substantial reassessment is required as to what, if any, causes of action, which the applicant is minded to pursue, might be articulated and be amenable to satisfying the requirements of UCPR 129G.
30. [30]
    Further to these observations, there will be direction that the applicant be provided with a copy of a chain of email correspondence, between the Court’s registry and a person identified variously as “Shajahan Karim” and “Shah Karim”, between 19 August 2020 and 6 December 2021 (and subsequent such correspondence, if any). This includes the attachment to the email of 6 December 2021 and an email of the same date, to my associate and therefore, then, bringing this correspondence to the attention of the Court.  It is to be noted that none of this material has been considered or taken into account, in the determination which has been reached and set out above.  However, the applicant should be made aware of it and particularly for any benefit it may have in any further consideration of her position.