Anastasopoulos v Cleary

[2003] NSWSC 1093

CITATION:	Anastasopoulos v Cleary & Ors [2003] NSWSC 1093
HEARING DATE(S):	18 November 2003
JUDGMENT DATE:	26 November 2003
JURISDICTION:	Common Law Division Administrative Law List
JUDGMENT OF:	Master Malpass
DECISION:	The appeal fails. The Summons is dismissed. The plaintiff is to pay the costs of the proceedings. The Exhibits are to be returned.
CATCHWORDS:	Appeal from Tribunal - notice of application - was the plaintiff a party to the proceedings - denial of procedural fairness - Tribunal procedures.
LEGISLATION CITED:	Consumer, Trader and Tenancy Tribunal Act 2001. Home Building Act 1989, s 48G.
CASES CITED:	Cameron v Cole (1943) 68 CLR 571. Hoskins v Van Den-Braak (1998) 43 NSWLR 290.
PARTIES :	Vasilius Anastasopoulos (Plaintiff) v Bill Cleary (First Defendant) Cathy Cleary (Second Defendant) The Registrar, Consumer Traders & Tenancy Tribunal (Third Defendant) The Registrar, District Court of New South Wales (Fourth Defendant)
FILE NUMBER(S):	SC 30066 of 2003
COUNSEL:	Mr P D Gray-Grzeszkiewicz (Plaintiff) Mr E N Gramelis (First & Second Defendants) N/A (Third & Fourth Defendants)
SOLICITORS:	Leverage Australia Pty Ltd (Plaintiff) Levitt Robinson (First & Second Defendants) I V Knight - Crown Solicitor - Submitting Appearance (Third & Fourth Defendants)

LOWER COURTJURISDICTION:	Consumer, Trader and Tenancy Tribunal
LOWER COURT FILE NUMBER(S):	HB 03/05431
LOWER COURT JUDICIAL OFFICER :	Simon Hennings, Member

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

Master Malpass

Wednesday 26 November 2003

30066 of 2003 Vasilius Anastasopoulos v Bill Cleary & Ors

JUDGMENT

1 MASTER: This is a most unusual case. The court is left with the impression that the plaintiff has taken the course of placing but a small and misleading part of a bigger picture before it.

2 On 5 May 2003, the Consumer, Trader and Tenancy Tribunal (the Tribunal) made the following order:-

“1. Aquatrend Australia Pty Ltd, Ausgold S. A. Pty Ltd & Vasilius Anastasopoulos jointly and severally are to pay Bill Cleary and Cathy Cleary the sum of $43,292.00 immediately.”

The plaintiff has brought an appeal against that order.

3 The Summons was filed on 29 July 2003. The plaintiff contends that he was denied procedural fairness.

4 The first and second defendants (the defendants) desired to have a swimming pool erected upon their property. It appears that in about late 2002, the defendants made certain arrangements with Aquatrend Australia Pty Ltd. It appears that the man who introduced himself as Michael and being from that company also made certain arrangements with the plaintiff. This saw the plaintiff signing certain standard form of contracts for building work. Why he did this is left unexplained.

5 Certain work was then done in relation to the erection of a pool. According to the plaintiff, this work was not done by him.

6 The defendants regarded the work as being unsatisfactory and brought an application in the Tribunal. It was filed on about 6 February 2003.

7 There is dispute between the parties as to who was the named respondent in the application. The form of the application sees Aquatrend Australia being designated as the other party. The plaintiff’s name and building licence number appears in the form of the application. The name and number is accompanied by the following observation:-

“This builder has never been seen”.

8 At some time in early 2003, the plaintiff received correspondence from the Tribunal. The plaintiff then attended a site meeting at the property of the defendants. He was accompanied by Mr Bill Maher. At the site meeting, he was shown the standard form of contract that he had earlier signed. He signed further documentation concerning the performance of rectification work for the pool. He says that he did not understand why he was asked to sign it, but thought from what he was told that it was the right thing to do for his builder’s licence. He says that thereafter he performed a supervisory role in relation to the rectification work.

9 The Tribunal regarded the matter as having been referred for alternative dispute resolution which produced an agreement pursuant to s48G of the Home Building Act 1989. It was an agreement that required the work to be completed before 10 April 2003.

10 The plaintiff received further correspondence from the Tribunal. The Tribunal file contains a number of written communications addressed to the plaintiff. Whatever he received it advised of a hearing date on 27 March 2003. Certain of this material is dated 12 February 2003. It advised that the plaintiff had been nominated as a respondent in the application and gave notice that the application had been listed before the Tribunal on 27 March 2003 for directions and hearing.

11 The plaintiff attended before the Tribunal on that day. He was accompanied by Mr Bill Maher who acted as an advocate on his behalf. The Tribunal Record records him as an “Other Party”.

12 There is dispute between the parties as to what took place on 27 March 2003. The plaintiff propounds a version which is to the effect that it was established that he was not a party and that he was excused from any further involvement in the proceedings. The defendants propound a different version. It was to the effect that the plaintiff was merely excused from further attendance on that day. This was because the plaintiff had until 10 April 2003 to complete the work and for that reason the defendants did not wish to proceed against him on that day.

13 The plaintiff continued to do work on the site after 27 March 2003.

14 On 2 April 2003, the Tribunal purported to send a Notice of Order to the plaintiff. It advised that the hearing had been adjourned to a date to be fixed by the Registrar. It noted the agreement reached between the applicants and the third parties dated 27 February 2003. Also, it advised that Ausgold S A Pty Ltd had been joined as a respondent.

15 By Notice of Conciliation & Hearing dated 2 April 2003 the Tribunal purported to notify the plaintiff that the application had been listed for hearing on 5 May 2003. On behalf of the plaintiff it is contended that he did not receive this notice.

16 The work was not completed by 10 April 2003. By written communication to the Tribunal dated 10 April 2003 (Exhibit A), Mr Cleary made a written request that the plaintiff be joined as a party to the hearing on 5 May 2003. His communication refers to the fact that the work was not completed by the 10th of April 2003. There had been communication between Mr Cleary and the plaintiff on that day. During a conversation he had told the plaintiff in effect that he would see him in court.

17 The plaintiff did not attend before the Tribunal on 5 May 2003. On that day the application was heard ex parte. Subsequently, the plaintiff was notified of the order made on 5 May 2003.

18 The Tribunal has provided written reasons for its decisions. The reasons are dated 16 June 2003. The reasons contain the following:-

“ RESPONDENT’S EVIDENCE
There was no appearance of any of the respondents. Hearing notices were sent to all three respondents at their correct addresses. All three respondents were parties to the proceedings and none of them had ever been formally removed or excused from attending. A party who fails to attend does so at their own peril. Pursuant to S29 of the Consumer, Trader and Tenancy Tribunal Regulations 2002 the matter was heard ex parte.
After receiving the hearing notice two faxes were received by the registry from Mr Kevin Murphy from Ausgold S. A. Pty Ltd denying any liability or knowledge of the work. There was no appearance by the party to give this evidence. Given the applicant’s evidence under oath the assertions by Mr Murphy were rejected.”

19 The plaintiff has relied on a number of affidavits (including one sworn by himself and one sworn by Mr Bill Maher). Both deponents were cross-examined. Mr Cleary has sworn an affidavit. He was also cross-examined. Material found in the Tribunal’s file is annexed to an affidavit sworn by Mr Kaouna.

20 Matters of reliability and credibility of evidence have assumed importance in this case. During the giving of oral evidence, I have closely observed the demeanour of the witnesses. In assessing credibility, I have had regard both to demeanour and evidence.

21 Mr Cleary impressed me as an honest and reliable witness who did his best to give truthful and accurate evidence. I accept his evidence (including his version of what happened before the Tribunal on 27 March 2003).

22 The plaintiff was a most unimpressive witness. He did not present as a person who would naively sign contractual documents. He gave the impression of being evasive and unresponsive in dealing with questions in cross-examination. He was prone to dropping his voice and was at times verging on being inaudible. He gave evidence that appeared to be deliberately false. He gave evidence that was unreliable. He was seen to resile from various aspects of what was said in his affidavit (inter alia as to dates, persons and bodies dealt with). He gave evidence which not only conflicted with his affidavit but also his other oral evidence. There were many changes of position. His evidence conflicted with other evidence (including certain of the oral evidence given by his own witness Mr Bill Maher). In the absence of independent corroboration, I do not accept his evidence.

23 His affidavit presents a picture of having received one letter only from the Tribunal. In cross-examination, this was shown to be incorrect. It is implausible that so much correspondence that had been correctly addressed should not reach the plaintiff.

24 Save for the date of the occasion, the plaintiff and Mr Bill Maher in their respective affidavits gave identical versions of what was said before the Tribunal on 27 March 2003. In cross-examination, the plaintiff took issue with the version given by Mr Cleary but Mr Bill Maher largely agreed with it (including that the plaintiff was excused from today’s hearing). Both erroneously identified the Tribunal Member.

25 In paragraph 8 of his affidavit he presents a picture of a long relationship with Mr Bill Maher. It was supplemented by his oral evidence (it was said to be that of good friends for about 15 years). This was in conflict with what was said by Mr Bill Maher during cross-examination (a relationship of about 2 years standing).

26 As the appellant, the plaintiff bears the onus of satisfying the court that the decision of the Tribunal should be set aside.

27 On behalf of the plaintiff, it is said that he was not made a party to the original application. Whether or not he was made a party in the original application is somewhat unclear. Whatever the position may be, it seems to me it is of no significance in the light of subsequent events.

28 Counsel for the plaintiff has submitted from the Bar Table that the plaintiff was not served with the originating process and that counsel for the defendant had failed to cross-examine on that matter.

29 The plaintiff further says that because he was not served with the originating process, the proceedings are a nullity. In support of this proposition, the court was referred to Hoskins v Van Den-Braak (1998) 43 NSWLR 290 and Cameron v Cole (1943) 68 CLR 571.

30 It was also said that he was not given notice of the hearing and accordingly did not have a reasonable opportunity to present his case.

31 I do not accept any of these submissions. A reading of the plaintiff’s affidavit reveals that in such document he does not in any direct or express way depose to the matter of service. Perhaps it was thought that this should be implied from what appears in that affidavit (including his statement that he received only one letter from the Tribunal). Such material has been shown to be erroneous and/or is not accepted by the court. I am not satisfied that he was not served. Even if it had been a case of non-service, I take the view that the authorities relied on are distinguishable and do not assist the plaintiff in this case.

32 Further, it must be appreciated that the parties were before the Tribunal and not a court. The Consumer, Trader and Tenancy Tribunal Act 2001 (the Act) does not embrace the concept of “service”. It speaks of “notice”. It can join parties, inter alia, by oral direction. Subject to the Act, it determines its own procedure and is required to act with as little formality as the circumstances of the case permit.

33 The plaintiff attended before the Tribunal on 27 March 2003 and was treated as a party. Mr Cleary made a written application that he be joined as a party. Whilst certain of the communications do not list his name as a party in their respective headings, the content of material contained therein both refers to him as a party and treats him as one. In the written reasons, he was unambiguously dealt with as a respondent. I am not satisfied that he did not become a party to the proceedings.

34 As at 10 April 2003, he knew that Mr Cleary was unhappy with the attempts at rectification. He was put on notice that the application could be expected to proceed to a hearing.

35 The only remaining question is whether or not the plaintiff was given notice of the hearing on 5 May 2003. This turns on a question of fact which depends on his own evidence.

36 His affidavit does not directly deal with the question of whether or not he received the notice dated 2 April 2003. It present a picture of him having no contact with the matter between 10 April 2003 and 26 May 2003 (when he was contacted by a sheriff). During cross-examination he appeared to first say that he had received the notice about a week before the nominated hearing date. Later, he appeared to resile from this evidence and suggest that he either had not received the notice or that he could not remember receiving the notice.

37 The Tribunal satisfied itself that a hearing notice had been sent inter alia to the plaintiff at his correct address. In reaching that decision, it would have had reference to the material then available to it.

38 To the extent that the plaintiff has given evidence of non-receipt of the notice, I do not accept that evidence. It is for the plaintiff to demonstrate that he did not receive notice of the hearing. The evidence fails to satisfy me on that question. Accordingly, I am not satisfied that he was denied a reasonable opportunity to be present. Rather, it seems to me that he chose not to attend a hearing of which he had notice. The other parties appear to have taken the same course.

39 The appeal fails. The Summons is dismissed. The plaintiff is to pay the costs of the proceedings. The Exhibits are to be returned.

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Last Modified: 12/04/2003