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Cassar v Hans Pet Constructions Pty Ltd

Cassar v Hans Pet Constructions Pty Ltd

Case [2008] NSWSC 1386 23 December 2008

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CITATION: Cassar v Hans Pet Constructions Pty Ltd [2008] NSWSC 1386

HEARING DATE(S): 18 November 2008

JUDGMENT DATE :
23 December 2008

JURISDICTION: Common Law

JUDGMENT OF: Rothman J

DECISION:
(i) Leave to appeal be granted;
(ii) The judgment of his Honour Magistrate Heilpern, of 22 July 2008, in matter number 10799/2007, Hans Pet Constructions Pty Ltd v Kay Isabel Cassar & Anor, striking out the defence in those proceedings and granting default judgment, be quashed;
(iii) The Local Court deal with the application for a variation of the timetable in the aforementioned matter in accordance with law;
(iv) The defendant shall pay the plaintiffs’ costs of and incidental to these proceedings, as agreed or assessed;
(v) To the extent otherwise entitled, the defendant be granted an indemnity certificate pursuant to the terms of s 6 of the Suitors’ Fund Act 1951;
(vi) The parties be granted liberty to apply for any further order consequential upon the foregoing reasons for judgment, including any different order as to costs, by application to my Associate by 4 February 2009.

CATCHWORDS: PRACTICE AND PROCEDURE – appeal from judgment striking out defence – exercise of discretion not to be subject to interference unless error of principle – failure of party to comply with directions as to filing evidence did not allow striking out of defence – appeal allowed

LEGISLATION CITED: Civil Procedure Act 2005
Local Courts Act 1982
Suitors' Fund Act 1951

CATEGORY: Principal judgment

CASES CITED: Comet Building Services Pty Ltd v Hy-Tec Industries Pty Ltd [2008] NSWSC 11
Dennis v Australian Broadcasting Corporation [2008] NSWCA 37
Haset Sali v SPC Ltd [1993] HCA 47; (1993) 67 ALJR 841
House v R [1936] HCA 40; (1936) 55 CLR 499
Maxwell v Keun [1928] 1 KB 645
Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274
Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146
Sullivan v Department of Transport (1978) 20 ALR 323

PARTIES: Kay Isabel Cassar (First Plaintiff)
Frank Savior Cassar (Second Plaintiff)
Hans Pet Constructions Pty Ltd (Defendant)

FILE NUMBER(S): SC 13795/2008

COUNSEL: H Altan (Plaintiffs)
D Talintyre (Defendant)

SOLICITORS: Eddelbuttel Law (Plaintiffs)
Moloney Lawyers (Defendant)

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 10799/2007

LOWER COURT JUDICIAL OFFICER : Heilpern LCM

LOWER COURT DATE OF DECISION: 22 July 2008

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ROTHMAN J

23 DECEMBER 2008

13795/2008 Kay Isabel Cassar & Anor v Hans Pet Constructions Pty Ltd
JUDGMENT

1 HIS HONOUR: Hans Pet Constructions Pty Ltd is a builder who sub-contracted to Mr and Mrs Cassar the performance of tiling work. Hans Pet alleges that the workmanship of Mr and Mrs Cassar was a breach of the contract between them and claims damages in the sum of $55,884.74, which, Hans Pet alleges, is the cost of rectifying or replacing the tiles. As may be obvious from the sum involved, the matter came before the Local Court and his Honour…

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 Cassar v Hans Pet Constructions Pty Ltd

Details

AGLC: Cassar v Hans Pet Constructions Pty Ltd [2008] NSWSC 1386
Case: [2008] NSWSC 1386
Decision Date: 23 December 2008

CaseChat Overview and Summary

In the case of Cassar v Hans Pet Constructions Pty Ltd, the dispute was between an employee, the appellant, and his former employer, the respondent. The matter was heard in the Supreme Court of New South Wales, where the appellant sought to appeal a decision from the District Court that had struck out his defence. The issue before the court was whether the trial judge had exercised his discretion appropriately when deciding not to allow the appellant to rely on his defence, given the appellant's failure to comply with directions regarding the filing of evidence. The court was required to determine if the trial judge's decision was subject to interference and if there had been an error of principle.

The court considered the applicable legal principles regarding the exercise of discretion in such matters. It noted that an appellate court should not interfere with a trial judge's decision unless there has been an error of principle. The court found that the trial judge had considered the relevant factors in deciding not to strike out the defence, including the appellant's failure to comply with the directions. However, the court concluded that the trial judge's decision to strike out the defence was not justified in the circumstances, as the appellant's failure to comply with the directions did not warrant such a severe outcome. The court found that the trial judge had not adequately considered the appellant's reasons for non-compliance and the potential prejudice to the respondent if the defence were to be struck out.

The appeal was allowed, and the decision of the District Court was set aside. The matter was remitted to the District Court to be heard afresh, with the appellant's defence allowed to proceed. The court emphasised that the trial judge should have considered the appellant's reasons for non-compliance and the potential prejudice to the respondent before deciding to strike out the defence. The court also noted that the trial judge should have been more cautious in exercising his discretion, particularly in light of the appellant's failure to comply with directions. The final orders of the court were that the appeal be allowed, the decision of the District Court be set aside, and the matter be remitted to the District Court for a fresh hearing.

Orders