Boghossian v Warner - [2000] NSWCA 27

NEW SOUTH WALES COURT OF APPEAL

CITATION: BOGHOSSIAN v WARNER & ORS [2000] NSWCA 27

FILE NUMBER(S):
40863/99

HEARING DATE(S): 11 October 1999

JUDGMENT DATE: 03/03/2000

PARTIES:
PAUL BOGHUS BOGHOSSIAN v PETER GEORGE WARNER & ORS

JUDGMENT OF: Mason P Handley JA Beazley JA

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): ALD 30116/96

LOWER COURT JUDICIAL OFFICER: Smart J

COUNSEL:
Appellant: M J Cohen
1st Respondent: C R Blackwell (Sol)
2nd Respondent: No appearance
3rd Respondent: Submitting

SOLICITORS:
Appellant: Church & Grace
1st Respondent: Cowley Hearne
2nd Respondent: Self represented
3rd Respondent: I V Knight, Crown Solicitor

CATCHWORDS:
Inferior Courts and Tribunals - Consumer Claims Tribunal - jurisdiction - collateral contract - building dispute - receipt of secret commission by one of two proprietors - natural justice - failure to serve notice with details of claim - party appears and meets case - finding that fully understood position - ND

LEGISLATION CITED:

DECISION:
Appeal dismissed with costs

JUDGMENT:

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40863/98
MASON P
HANDLEY JA
BEAZLEY JA
Friday 3 March 2000

Paul Boghus BOGHOSSIAN v Peter George WARNER & ORS
JUDGMENT

MASON P: A building dispute about a comparatively small sum of money has got completely out of hand. Much time and cost have been expended and much of that expenditure will be wasted if, as the claimant alleges, the determination of the building disputes tribunal is vitiated for lack of jurisdiction or denial of procedural fairness. The case is troubling because it is clear that the claimant has had a general understanding of the central allegation made against him from as early as late 1995. However, some of the points raised by the claimant are said to be based upon his lack of complete comprehension of English. His first language is Armenian and he requires the assistance of his wife or an official interpreter from time to time with complex matters. But he has lived in Australia for over 30 years and it is clear that he is generally able to understand and be understood in English. Like any litigant he is entitled to due process, no less and no more.
Mr Warner and the claimant owned a development site at Meadowbank and they retained Nascon Pty Ltd (Nascon) to construct a duplex there. There was a building dispute and Nascon suspended work. Mr Warner lodged a building claim against Nascon with the Registrar of the Consumer Claims Tribunals.
Proceedings before the tribunal eventuated in an order made on 26 July 1996 that the claimant pay Mr Warner $25,000. That order was challenged in the Supreme Court on the bases that it was made (a) without jurisdiction and (b) in circumstances involving a denial of natural justice. Smart J dismissed the summons with costs.
The claimant seeks leave to appeal and the hearing of that application has been treated as if it were the hearing of an appeal. The application was filed out of time, but we heard…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Boghossian v Warner

Details

AGLC: Boghossian v Warner [2000] NSWCA 27
Case: [2000] NSWCA 27
Decision Date: 3 March 2000

CaseChat Overview and Summary

The Supreme Court of New South Wales considered an appeal from a decision of the Consumer Claims Tribunal in a building dispute between Mr. Boghossian and Warner. The core of the dispute involved allegations that one of the proprietors of Warner had received a secret commission.

The Court was required to determine whether the Consumer Claims Tribunal had jurisdiction to hear the matter, specifically in relation to the alleged collateral contract and the receipt of a secret commission. A further issue concerned whether the Tribunal had denied natural justice to Mr. Boghossian by failing to serve him with a notice detailing the claim, despite his appearance and participation in the proceedings where he appeared to understand the case against him.

The Court reasoned that the Consumer Claims Tribunal did possess jurisdiction to deal with the dispute, including the allegations of a secret commission, as these matters were intrinsically linked to the building contract and fell within the Tribunal's remit. Regarding the natural justice point, the Court found that while there may have been an initial defect in service, Mr. Boghossian had subsequently participated in the proceedings and demonstrated a full understanding of the case he was facing. This participation effectively cured any initial procedural irregularity, meaning his right to natural justice was not ultimately infringed.

The appeal was dismissed, and Mr. Boghossian was ordered to pay the costs of the appeal.

Orders

Orders of the court

Appeal dismissed with costs

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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