Bari v Sattar

[2007] NSWSC 1246

CITATION:	Bari & Anor v Sattar [2007] NSWSC 1246
HEARING DATE(S):	02/11/2007
JUDGMENT DATE :	2 November 2007
JUDGMENT OF:	Associate Justice Malpass
DECISION:	The proceedings are dismissed. The plaintiffs are to pay the costs of the proceedings.
CATCHWORDS:	Small Claims Division - appeal on grounds of jurisdiction and denial of natural justice
LEGISLATION CITED:	Local Courts Act 1982 (NSW)
PARTIES:	Abdul Bari (1st Pl) Aleya Bari (2nd Pl) Abdul Sattar (Def)
FILE NUMBER(S):	SC 11965/07
COUNSEL:	Mr W. Sharwood (Pls) Mr M. Rollinson (Def)
SOLICITORS:	Snedden Hall & Gallop (Pl) Ramrakha Jenkins (Def)
LOWER COURT JURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):	5893/2005
LOWER COURT JUDICIAL OFFICER :	Madgwick LCM
LOWER COURT DATE OF DECISION:	05/04/2007

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE MALPASS

2 November 2007

11965/07 Abdul Bari & Anor v Abdul Sattar

JUDGMENT

1 HIS HONOUR: The defendant alleged that a loan had been made by him to the plaintiffs in the sum of $9,000.00. It is said that the moneys were advanced to the plaintiffs at their request on 16 September 1999 by way of deposit into a bank account standing in the name of the mother of the second plaintiff (Ambia Khatum) at Marrickville in New South Wales.

2 A demand for repayment received a response disputing the loan. Proceedings were then commenced in the Local Court (by Statement of Liquidated Claim) and default judgment was entered in favour of the defendant.

3 After being served with a bankruptcy notice, the plaintiffs made application to the Local Court to have the default judgment set aside. The application appears to have raised three issues. Initially, there was dispute as to service of the originating process (later concessions were made and the plaintiffs moved to the position of not recalling being served; see pp5, 8 and 9 of the Transcript). There was a question of jurisdiction (did a material part of the cause of action arise within New South Wales as required by s69 of the Local Courts Act 1982 (NSW)). There was a question as to whether there was a bona fide defence on the merits (which was to the effect that the deposit into the bank account was a repayment of a loan made to a resident in Bangladesh).

4 The application was heard by Madgwick LCM on 5 April 2007. Evidence was placed before the Court (including an affidavit affirmed by the defendant on 4 April 2007). The parties were legally represented.

5 On 5 April 2007, the Magistrate delivered an ex-tempore judgment. She dismissed the application.

6 The judgment contains the following paragraph:-

“Whilst I do not go into the merits or otherwise of the defence I do have some doubts as to whether the defence is asserted bona fides. As I said, whilst the defendants say they have a bona fide defence, the material provided to me does not satisfy me. I do have the affidavits of service with no proper explanation as to why a licensed commercial agent would have served it giving details of each person being served and then the defendants saying that they had no knowledge of it. I AM NOT GOING TO GRANT THE NOTICE OF MOTION.”

7 It appears from this material that the Magistrate came to her decision for two reasons:-

1) she did not accept that the originating process had not been served;
2) she came to the view that the defence propounded by the plaintiffs was not bona fide.

8 The question of jurisdiction had been earlier disposed of by the Magistrate on the basis that the advance took place in New South Wales (see p7 of the Transcript).

9 The Statement of Liquidated Claim did not disclose the place of the making of the advance. The plaintiffs resided in Canberra. However, the evidence revealed that it was made by the defendant in New South Wales (by way of deposit into the bank account). There was no dispute between the parties that such a deposit was made. The plaintiffs did not lead any helpful evidence on this issue. It was an issue in respect of which the onus was borne by them.

10 The plaintiffs have brought proceedings in this Court. They now proceed on an Amended Summons. The purport of the proceedings is to challenge the decision of the Magistrate and to have the default judgment set aside.

11 As the proceedings were dealt with in the Small Claims Division of the Local Court, the grounds of challenge are restricted to those of jurisdiction and denial of natural justice. The matters of appeal embrace both of these grounds.

12 The parties were represented by Counsel. Counsel made written submissions, supplemented by oral argument.

13 On the question of jurisdiction, the contention of the plaintiffs was that a material part of the cause of action did not arise within New South Wales. I have earlier referred to the evidence that was before the Magistrate. It demonstrated a New South Wales connection in respect of the claim made by the defendant (the defendant making the advance at Marrickville). When regard is had to what was before her, it seems to me that it was reasonably open to the Magistrate to proceed on the basis that the Local Court had the jurisdiction to entertain the defendant’s claim (a material part of it had arisen within the State). Accordingly I am not satisfied that the Local Court lacked jurisdiction to entertain the claim.

14 The allegations of denial of natural justice are to be found in the third appeal ground. It is in the following terms:-

“3. Her Honour Magistrate Madgwick denied the Plaintiffs natural justice by:
a) not adjourning the Notice of Motion to allow Counsel for the Plaintiffs to take instructions on an affidavit of Abdul Satter affirmed on 4 April 2007 (‘the Satter Affidavit’) filed by the Defendant at the hearing of the motion;
b) denying the Plaintiffs the opportunity to present evidence in response to the Sattar affidavit;
c) proceeding to determine the ultimate fact in issue between the parties, in circumstances where she was considering the Plaintiff’s application to set aside default judgment;
d) proceeding to determine the ultimate fact in issue between the parties without adequate notice to the Plaintiff that she proposed to determine that issue;
e) failing to give the Plaintiffs adequate notice that she intended to rely on material in the Sattar affidavit
f) failing to give the Plaintiffs adequate notice that she intended to resolve the issue of service of the statements of claim by:
i. imposing an onus of proof on the Plaintiffs to show that the affidavits of service were a sham; and
ii. dismiss (sic) the sworn evidence of the Plaintiffs that each had not received the Statement of Claim.”

15 The concept of natural justice is a flexible one. It is one of fairness. Each case can be expected to turn on its own particular circumstances. The onus rests with the party alleging a denial of natural justice.

16 I shall first address the question relating to the allegations of determination of ultimate fact in issue. What is asserted by the plaintiffs is misconceived. There was no determination of any ultimate fact in issue.

17 There remains the matters advanced in relation to the affidavit of the defendant affirmed on 4 April 2007. What has been said in the third ground of appeal has been the subject of some elaboration in written submissions made on behalf of the plaintiff. However, to a significant extent, the written submissions embark on a challenge to the merits of the decision of the Magistrate.

18 In my view, the evidence fails to support the contention that there was a denial of natural justice. Indeed, the evidence supports the view that the plaintiffs were given a reasonable opportunity to present their case.

19 The affirmed affidavit was received into evidence. It responded to an affidavit affirmed by Ambia Khatum on 2 April 2007 (an affidavit which itself responded to an earlier affidavit affirmed by the defendant on 27 March 2007). The plaintiffs did not seek to put other evidence before the Court that responded to its contents. No application for adjournment was made. The transcript reveals that lengthy exchanges took place between Counsel for the plaintiffs and the Bench. Indeed, he responded to her question “Anything else anyone wants to say to me?” In the circumstances, I consider that Counsel for the plaintiffs was given a reasonable opportunity to be heard and, in fact, said all that he wanted to say in relation to both that evidence and generally in relation the case of his clients.

20 In my view, the plaintiffs have failed to demonstrate any basis for relief. Accordingly, the appeal fails.

21 The proceedings are dismissed. The plaintiffs are to pay the costs of the proceedings.

**********