Armitage Designer Homes P/L v CTTT

[2004] NSWSC 402

CITATION:

Armitage Designer Homes P/L v CTTT & Anor [2004] NSWSC 402

HEARING DATE(S):

13 April 2004

JUDGMENT DATE:

17 May 2004

JURISDICTION:

Common Law - Administrative Law List

JUDGMENT OF:

Master Harrison

DECISION:

(1) The decision and orders made by the CTTT on 16 September 2002 are affirmed; (2) The appeal is dismissed; (3) The plaintiff's sumons filed 23 October 2003 is dismissed; (4) The plaintiff is to pay the second defendant's costs as agreed or assessed.

CATCHWORDS:

Appeal from decision of CTTT - Non-receipt of notice of hearing - denial of procedural fairness

LEGISLATION CITED:

Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) - s 65
Consumer Trader and Tenancy Tribunal Regulations 2002 (NSW) - Reg 29

PARTIES :

Armitage Designer Homes Pty Ltd (ACN 073 134 022)
(Plaintiff)

Consumer Trader and Tenancy Tribunal
(First Defendant)

Con and Eleni Dimitriou
(Second Defendants)

FILE NUMBER(S):

SC 30096/2003

COUNSEL:

Mr A Rogers
(Plaintiff)

Mr P Cook
(Second defendants)

SOLICITORS:

Adams & Partners
(Plaintiff)

Submitting Appearance
(First Defendant)

B David & Associates
(Second Defendants)

LOWER COURTJURISDICTION:	CTTT
LOWER COURT FILE NUMBER(S):	HB1/76538
LOWER COURT JUDICIAL OFFICER :	The Registrar - CTTT

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

MASTER HARRISON

MONDAY, 17 MAY 2004

30096/2003 - ARMITAGE DESIGNER HOMES PTY LTD v
CONSUMER TRADER & TENANCY
TRIBUNAL & ANOR
JUDGMENT (Appeal from decision of CTTT – Non-receipt of notice of hearing – denial of procedural fairness)

1 MASTER: By summons filed 23 October 2003 the plaintiff seeks firstly, a declaration that the plaintiff was denied natural justice in the making of orders by the first defendant against the plaintiff in favour of the second defendants on 16 September 2002 in proceedings No. HB1/76538 (‘the proceedings’); secondly, an order in the nature of certiorari that the record of the proceedings be called up into this court and the orders be quashed and thirdly, an order that the proceedings be returned to the Consumer Trader and Tenancy Tribunal (CTTT) to be dealt with in accordance with the law and fourthly, costs. The plaintiff relied on the affidavit of Sandro Sardi sworn 18 December 2003 and the affidavits of Alan Murphy sworn 22 October 2003 and 18 December 2003. The second defendants relied on the affidavit of Con Dimitriou sworn 24 February 2004.

2 The plaintiff is Armitage Designer Homes Pty Ltd (Armitage). It is Mr Murphy, the managing director on behalf of the plaintiff who was involved in the proceedings before CTTT and this court. The first defendant is the CTTT who has filed a notice of appearance. The second defendants are Con and Eleni Dimitriou.

3 The dispute between the plaintiff and the second defendants related to the construction of a new dwelling at Lot 729 Magney Place, Bella Vista (the property) pursuant to a building agreement dated 27 June 1998 (the agreement) between the plaintiff and second defendant. The plaintiff is the builder. It sub-contracted the instalment of windows to Darren Adam Stanford t/as Black Cat Glass & Aluminium (Black Cat). The second defendants are the owners of the property and contracted for the building of a new dwelling on that property.

Grounds of appeal

4 The plaintiff’s grounds of appeal are that the Tribunal Member erred in failing to give the plaintiff notice of the 16 September 2002 hearing and thus denied the plaintiff natural justice by hearing and determining the proceedings in the absence of the plaintiff. The plaintiff submitted that it would be unlikely that the plaintiff would not have turned up at the hearing as its director knew that there was a substantial sum of money in dispute and he had up until that time, taken an active role in the proceedings. The plaintiff submitted that it was likely that although the notice was sent, it was not delivered to it. The second defendants contend that the plaintiff has not always attended court directions and it was likely that the plaintiff had received the notice but failed to appear at the hearing.

5 Section 65(3) of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) (the Act) provides that relief can be granted by way of a judgment or order in the nature of prohibition, mandamus, certiorari, declaratory judgment or an injunction if in relation to the hearing or determination of the matter, a party had been denied procedural fairness or the Tribunal had no jurisdiction to make the order.

6 At the CTTT the plaintiff did not appear at the hearing and the matter proceeded in his absence. On 16 September 2002, the Tribunal made the following orders.

“1. In full and final satisfaction of both claim and cross-clain [sic], the Tribunal orders the first respondent, ARMITAGE DESIGNER HOMES PTY LIMITED to forthwith pay to the applicants, CON & ELENI, DIMITRIOU the sum of $34,605.00, together with costs fixed at $10,193.70.
NOTE: If the other party does not comply with the order to pay money, a certified copy of the above money order may be obtained from the Tribunal for the purpose of enforcement action through the Local Court.
2. The Tribunal declares that no monies remain due and owing by the applicants, CON & ELENI DIMITRIOU to the first respondent, ARMITAGE DESIGNER HOMES PTY LIMITED in respect of the contract for the construction of the premises at 16 Magney Place, BELLA VISTA NSW 2153.”

7 The plaintiff lodged applications for rehearing on the basis that he did not receive the notice advising him of the hearing and each of these applications were refused. The applications were lodged on 8 October 2002 and 8 April 2003 respectively. The plaintiff then commenced new proceedings against Black Cat and the second defendants in the CTTT. These proceedings were dismissed. There has been a delay of one year from the date of that decision to the filing of the summons in this Court. The plaintiff’s explanation for this delay is that it sought redress in the CTTT during this period.

8 The central issue in these proceedings is whether the plaintiff received notice of the hearing.

The Tribunal Proceedings

9 It is not proposed to refer to each directions hearing that took place before the Tribunal in detail. Rather, only the relevant directions will be mentioned in this judgment. Both the plaintiff and the second defendants filed proceedings at the then Fair Trading Tribunal (FTT) (now CTTT) at Parramatta. On 19 June 2001 the second defendants commenced proceedings (No. BU 2001/6538) against the plaintiff. On 30 August 2001 the plaintiff filed a cross-claim (No. BU 2001/9230) against the second defendants seeking the payment of $27,116.64 in respect of unpaid monies under the contract plus interest and GST. On 12 March 2002 an order was made joining Black Cat as a respondent.

10 The plaintiff acknowledged that it received notices from the Tribunal dated 12 November 2001, 18 February 2002, 19 February 2002, 12 March 2002, 19 April 2002, 8 May 2002 and 28 June 2002.

11 The FTT inadvertently addressed a letter dated 12 November 2001 to the plaintiff which stated:

“It is noted that you have not complied with the orders made on 3 August 2001. You are advised that if you do not comply by 25 November 2001 your claim will be dismissed for want of prosecution without further notice.”

12 The plaintiff replied by fax (undated but received 15 November 2001) to the FTT pointing out that it was the second defendants that had to supply the Scotts Schedule by 25 November 2001. On 30 November 2001 the FTT replied and acknowledged that the letter was intended for the second defendants and apologised for the inconvenience caused. Mr Murphy’s evidence in relation to this incident of this notice being forwarded to the wrong party is correct.

13 On 28 June 2002 the CTTT made an order for each of the parties to attend an on-site meeting to be held at 18 Magney Place, Bella Vista on 18 July 2002 at 9.30am for the purpose of inspecting the works in dispute, and attempting to resolve the outstanding differences between them. On 18 July 2002 the second defendant failed to attend the on-site meeting. It appears that a representative from Black Cat did not attend.

14 During cross examination Mr Murphy stated that he did not attend because there was no need for him to be there as it was Black Cat who had to carry out the work and that he had an agreement with Mr Dimitriou to telephone him after Black Cat had attended to let him know when they had finished. Mr Dimitriou denied that any such arrangement had been made. I prefer Mr Dimitriou’s evidence. It was the plaintiff who subcontracted to Black Cat and if Black Cat did not perform its part of the work, the plaintiff would be responsible for it.

15 In a letter to the CTTT dated 18 July 2002 the second defendant’s building consultants Moldovan Associates Pty Ltd reported that at the 8 May 2002 hearing, a cheque in the sum of $9,815.50 was paid to Armitage on the basis that they had performed the works agreed on 6 March 2002.

16 Moldovan Associates Pty Ltd then further stated:

“We have inspected the site today. All work is adequately performed as agreed, with the exception of item 6. The crack is not repaired as agreed, and the ‘bandage’ treatment applied is unacceptable.
It appears that the Defendant, Armitage, has neither the inclination nor the capacity to perform the repairs, despite considerable opportunity to do so.
The Applicant requests that an order for the costs of rectification be made. We advise that we are still holding a cheque in the amount of $9,815.50, which is the balance of funds agreed to be owed under the contract. Any determination by the Tribunal should account for this amount.”

17 On 30 August 2002 the CTTT issued notices of conciliation and hearing to the parties informing them of the 9.30am 16 September 2002 hearing at the CTTT at Penrith. The second defendants received this notice. The notices to the plaintiff, were addressed as follows:

“Armitage Designer Homes Pty Limited & Darren Adam Stanford T/a Black Cat Glass And Aluminium & Black Cat Glass Glazing And Aluminium
4 Cluster Place
CRANEBROOK NSW 2749”

“Armitage Designer Homes Pty Limited & Darren Adam Stanford T/a Black Cat Glass And Aluminium
45 Stilt Avenue
CRANEBROOK NSW 2749”

18 One of these addresses is the registered office of Armitage, the other is its place of business. The plaintiff’s director, Mr Murphy denies receipt of these notices at either address.

19 On 16 September 2002, the second defendants and their legal representative attended the CTTT. The hearing was postponed for an hour to allow for the plaintiff’s attendance before the Member heard the matter in the absence of the plaintiff. The Tribunal Member proceeded to hear the matter in the absence of a party which he is empowered to do provided he has been satisfied that the notice of hearing was duly served on the party – see Regulation 29 of the Consumer Trader and Tenancy Tribunal Regulations 2002 (NSW).

20 On 27 September the plaintiff received a demand by fax from the second defendants advising the plaintiff that the CTTT had entered judgment against the plaintiff in an amount of $40,798.70. The fax included a copy of the CTTT order made on 16 September 2002. The plaintiff gave some confusing evidence as to what he understood that demand to be. The plaintiff maintained that even though he remembers receiving the CTTT orders by fax from the second defendants, as far as he was concerned that did not mean that the fax with the court order was a bit ambiguous (t 41.55).

21 In his affidavit, Mr Murphy deposed that on 30 September 2002 he received the CTTT order made on 16 September 2002 from the CTTT and in evidence commented that “this does not mean that the one he [Dimitriou] sent me was valid” (t 5.34). On 30 September 2002 the plaintiff telephoned the CTTT to enquire as to how the CTTT made the orders in the absence of the plaintiff. On the same day the plaintiff faxed a hand written letter to the CTTT. It stated:

“TO WHOM IT CONCERN [sic] OR S GAINSFORD – HOLLAND
1/ Why have you sent this letter to us for the demand of money
2/ Your letter says on the 16-9-02 the tribunal made an order: Why were we not informed about this order or phoned to let us know you were making an order without us being there:
3/ Where is BLACK CAT responsability [sic] in this as it is there [sic] problem also.
I require an urgent phone call to let me know what is happening: or a re-listing on this matter A.S.A.P.
…”

22 Mr Sandro Sardi a director and shareholder of the plaintiff stated that he spent 95% of his time out on the field. Mr Murphy performs the administrative duties and he is responsible for the collecting and processing of the mail. Mr Sardi denied that the plaintiff commenced proceedings against Con and Eleni Dimitriou in the CTTT and that Alan Murphy has informed him of the progress of proceedings but not informed him that the plaintiff was required to attend a hearing on 16 September 2002.

23 On 30 September 2002 the plaintiff deposed that he received a telephone call from a person identifying himself or herself as an employee of the CTTT in which the CTTT employee said:

“There was a meeting on 7 September, 2002. You hadn’t turned up. There may have been an error. You can make an application to have the matter reheard”

The rehearing applications
The first rehearing

24 On 30 September 2002 the plaintiff lodged an application for rehearing with the CTTT at Penrith. A hearing was held on 8 October 2002. On 10 October 2002, S Reid provided written reasons for not granting the application for rehearing and stated:

“Applicant claims not to have received notice of hearing that was sent to the last known address on 30/08/02. The matter has been before the Tribunal since June 2001 and has involved several hearings and a site inspection on 18/07/02. In particular, the parties were given directions by the Tribunal on the 30/07/02 about the renewal of the application by Mr & Mrs Dimitriou, in particular that they were to forward a detailed list of their claim for rectification costs. Neither this, nor the notice of 30/08/02, were returned to the Tribunal as uncollected by the applicant.
The applicant has not provided any additional evidence that could lead to a different outcome.
APPLICATION FOR A REHEARING NOT GRANTED.”

The second rehearing

25 The plaintiff made a second application for rehearing with the CTTT. On 8 April 2003 the Tribunal gave written reasons. They are:

“The application is misconceived.
This is a second application under s 68 of the Consumer, Trader and Tenancy Tribunal Act 2001 for a rehearing of matter number 01/76538. The first rehearing application was refused on 8/10/02. While that application was refused on the basis that the Chairperson’s delegate did not appear to be satisfied that the notice of hearing was not received by the applicant, it in fact should never have been entertained.
Under sub-section 68(13) of the Act, an application for a rehearing cannot be made where the amount claimed or in dispute is more than $25,000. In matter number 01/76538 the amount claimed by the home owners was in excess of $44,000. The Tribunal therefore has no jurisdiction to consider an application under s 68 for a rehearing.
The applicant may wish to seek legal advice as to what remedy it may have against the glazier.
APPLICATION FOR A REHEARING NOT GRANTED.”

Enforcement in the Local Court

26 On 22 November 2002, the second defendants registered their order in the Local Court and caused a writ of execution to be issue at Blacktown Local Court. In the application to issue the writ, the judgment debtor is named as Armitage Designer Homes Pty Ltd and Darren Adam Stanford t/as Black Cat and Black Cat Glazing and Aluminum. However, the address for execution was nominated as 18 Isaac Smith Road, Castlereagh (the Black Cat address). The solicitor for the second defendants signed this application. At the time of issue of the writ there was no judgment against Black Cat. In the affidavit in support of his notice of motion seeking a stay of proceedings, sworn 4 April 2002, Mr Murphy deposed that “enforcement action is being taken in this matter. The enforcement is the earliest knowledge that I had of this matter”. Clearly this is not correct. The plaintiff had knowledge of the Tribunal orders for the payment of money by him on 27 September 2002. He received a copy of the orders on 30 October 2002. Mr Murphy further deposed in that affidavit that he had attended the Tribunal at Penrith and applied to have the Tribunal matter reheard and he had paid a fee of $150.00 for the rehearing of the matter. On 22 May 2003 the plaintiff’s notice of motion was struck out for failure of the plaintiff to attend the hearing.

27 On 10 July 2003 the Blacktown Local Court advised the second defendants that the plaintiff had lodged a further notice of motion to stay enforcement. On 25 July 2003 the Blacktown Local Court registrar dismissed the plaintiff’s notice of motion for its failure to appear at the hearing. In his affidavit in support dated 10 July 2003 Mr Murphy again deposed: “that enforcement action was being taken in this matter and that the enforcement action was the earliest knowledge that he had of the matter.” Mr Murphy further deposed that he had lodged an application for rehearing with the CTTT. There was no application for rehearing before the CTTT as both these applications had already been refused.

Further Tribunal proceedings

28 On 28 July 2003 the plaintiff commenced fresh proceedings in the CTTT against Black Cat and the second defendants (see Annexure ‘J’ to the affidavit of Alan Murphy sworn 18 December 2003). On 25 August 2003 a hearing was held at the CTTT at Blacktown before Tribunal Member Mr P. Cheeseman. Mr Murphy deposed that he has not received any formal notice of order of the 25 August 2003 decision but was present at that hearing (first paragraph 17 affidavit 22 October 2003).

29 The Tribunal stated that the CTTT could not overrule a prior member’s decision because the judgment was over $25,000.00 and that there was no right available to have the matter reheard in the CTTT. The plaintiff’s claim of $9,816.00 was rejected, and the plaintiff could continue an action against Black Cat for reimbursement under the current proceedings.

30 In September 2003, Mr Murphy received a statutory demand in relation to this debt from the defendant’s solicitor. In response he sent a fax stating “We were taking the matter to CTTT and to the Supreme Court” (t 10.24).

31 The plaintiff submitted that in failing to give notice of the 16 September 2002 hearing and thereby hearing and determining the proceedings in the absence of the plaintiff, he was denied procedural fairness. It is difficult to accept that not just one notice, but both notices (one being forwarded to the registered office the other being forwarded to the place of business of the plaintiff) did not find their way to the plaintiff, particularly as the second defendants received such a notice.

32 There was a report from Moldovan which was critical of the plaintiff stating that Armitage has neither the inclination nor the capacity to perform the repairs, despite a considerable opportunity to do so. It is my view that it is more likely that the plaintiff did receive either one or both notices but chose not to attend. Mr Murphy had chosen not to attend the prior site meeting. On an earlier occasion, namely 18 July, Mr Murphy knew about the scheduled site meeting and chose not to attend. His explanation for not being present is not plausible. If the plaintiff was keen to obtain payment of the second instalment, it would have been likely that he would have made enquiries of the CTTT as to what was happening in the proceedings particularly after he failed to attend the site meeting in July 2003. Even if I am wrong, there has been a delay of over a year between the decision of the CTTT and the commencement of these proceedings. The amount owed to the second defendants has been outstanding since 30 September 2002. Even if I accept that the plaintiff firstly sought redress in the CTTT by way of rehearing in April 2003, it was recommended by the CTTT that it seek legal advice. Despite this advice the plaintiff then commenced proceedings in the CTTT which caused further delay. The plaintiff’s claim fails. The decision and orders made by the CTTT on 16 September 2002 are affirmed. The appeal is dismissed. The plaintiff’s summons filed 23 October 2003 is dismissed.

33 Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the second defendant’s costs as agreed or assessed.

Orders

34 The court orders that:

(1) The decision and orders made by the CTTT on 16 September 2002 are affirmed.

(2) The appeal is dismissed.

(3) The plaintiff’s summons filed 23 October 2003 is dismissed.

(4) The plaintiff is to pay the second defendant’s costs as agreed or assessed.
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Last Modified: 05/18/2004