Feng v Haghparast

[2023] NSWDC 310

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Feng v Haghparast [2023] NSWDC 310

Hearing dates:

14 August 2023

Date of orders:

14 August 2023

Decision date:

14 August 2023

Jurisdiction:

Civil

Before:

Acting Judge Levy SC

Decision:

1. Dismissal of the plaintiff/appellant’s summons filed on 18 May 2023 appealing the decision of the Small Claims Division of the Local Court on 24 April 2023.

2. The plaintiff / appellant is to pay the respondent / defendant’s costs of the dismissed summons.

Catchwords:

APPEALS – Appeal from decision of an Assessor in the Small Claims Division of the Local Court – grounds of appeal limited by statute - application of s 39(2) of the Local Court Act 2007 (NSW) - appealed decision was within the jurisdictional remit of the Small Claims Division – denial of procedural fairness not established – summons and appeal dismissed

Legislation Cited:

Home Building Act 1989, (NSW) s 7B; s 18B

Local Court Act 2007 (NSW), s 39(2)

Health and Safety Regulation 2017 (NSW), cl 308

Cases Cited:

Carolan v AMF Bowling Pty Ltd t/a Bennetts Green Bowl [1995] NSWCA 69.

Zelden v Henamast Pty ltd v Sewell [2011] NSWCA 56

Category:

Principal judgment

Parties:

Plaintiff: Ruibao Feng (In person)
Defendant: Ferydon Haghparast (In person)

File Number(s):

2022/160852

Publication restriction:

None

JUDGMENT

Nature of the case and parties

1. This is an appeal brought as of right from a decision of the Small Claims Division of the Local Court of New South Wales in respect of proceedings that were determined on 24 April 2023 by Assessor Harvey in Wollongong.

2. The parties elected to be self-represented both at the hearing in the Local Court, and in the appeal.

3. The plaintiff / appellant in this Court, Mr Ruibao Feng, a homeowner, was the defendant in the Local Court proceedings.

4. The defendant / respondent in this Court, Mr Ferydon Haghparast, a supplier of building related services, was the plaintiff in the Local Court proceedings, where he sued for non-payment of services he had provided to Mr Feng.

5. The parties had entered into a form of contract relating to the supervision of construction of a granny flat on Mr Feng’s property, whereby Mr Haghparast had agreed to provide supervisory services to Mr Feng’s building project at an agreed price for which ultimately, Mr Feng did not fully pay him. Mr Haghparast therefore initiated the underlying proceedings in the Small Claims Division of the Local Court.

6. In the Local Court, essential the dispute concerned whether the work claimed by Mr Haghparast was in fact performed by him, and if so, what amount should he be paid for that work. The amount at issue was $15,000, which included a deposit of $5,000 that had been pre-paid by Mr Feng, leaving an outstanding balance of $10,000, which Mr Haghparast claimed Mr Feng still owed him. The proceedings included a cross-claim by Mr Feng.

7. Mr Haghparast was successful in his Local Court proceedings where the cross-claim was dismissed and he obtained a judgment in his favour for $12,028.62, including interest and ancillary expenses.

8. Mr Feng is dissatisfied with that outcome and has exercised his limited statutory right of appeal from that decision to this Court: s 39(2) of the Local Court Act 2007 (NSW).

9. It is noted that at the conclusion of the proceedings before the Assessor, Mr Feng asked the Assessor if he could appeal the decision. The Assessor informed him that there was limited scope for an appeal and encouraged him to obtain legal advice before embarking upon action in that regard: T7.46. Mr Feng said he had obtained advice in that regard. In this appeal he has continued to remain self-represented.

Applicable legal principles

10. An appeal to the District Court from the Small Claims Division of the Local Court is restricted by statute to limited grounds, namely, either a lack of jurisdiction, or a denial of procedural fairness: S 39(2) of the Local Court Act 2007 (NSW).

11. The clear public policy principle behind those limited grounds is that there must be early finality in the determination of litigation without placing an undue burden on public resources. In the case of small claims, costs should not swamp the amount in dispute and the cost burden on public resources must be duly recognised when observing the need for early finality of litigation: Zelden v Henamast Pty ltd v Sewell [2011] NSWCA 56, at [22], citing Carolan v AMF Bowling Pty Ltd t/a Bennetts Green Bowl [1995] NSWCA 69.

Procedural and factual background

12. On 13 July 2020, Mr Haghparast filed his statement of claim in the Wollongong Registry of the Local Court Small Claims Division. In those proceedings he sought damages of $10,000, this being the unpaid balance he claimed was still owing to him by Mr Feng, plus interest and ancillary procedural fees.

13. Mr Haghparast’s work which was the subject of his claim in the Small Claims Division involved his agreed contractual fees for site supervision and management of Mr Feng’s building project involving the building of the granny flat in question.

14. On 6 August 2020, Mr Feng filed a defence claiming that the required work was not completed as claimed by Mr Haghparast, and consequently, remedial work was required to be undertaken and completed by third parties. Mr Feng also claimed that Mr Haghparast had failed to comply with s 7B and s 18B of the Home Building Act (NSW) 1989 and Clause 308 of the Work Health and Safety Regulation 2017 (NSW). Consequent upon those claims, he refused to pay Mr Haghparast the residual balance of the amount claimable under their agreement.

15. On 6 August 2020, Mr Feng filed a cross-claim against Mr Haghparast seeking to recoup $2167 dollars he claimed to have paid to a firm of architects for claimed remedial work. He also sought the return of a $5000 deposit he had paid to Mr Haghparast. The cross-claim totalled $7467, including a filing fee and a fee for the service of process.

16. On 2 September 2020, the proceedings were the subject of a pre-trial review where Mr Feng had the assistance of a Chinese interpreter. On that occasion the dispute was referred for mediation, following which the case remained unresolved.

17. On 23 September 2020, the matter was fixed for hearing before the Local Court in Wollongong.

18. On 10 December 2020, that scheduled hearing did not proceed.

19. On 17 January 2020, the matter was again due to be heard at a small claims hearing but was marked not reached.

20. In 24 June 2020, the matter was again marked not reached. It was subsequently set down for a hearing on 7 July 2022. The hearing was to be conducted by means of a telephone connection with an estimate of 2 hours. The matter did not proceed on that day.

21. On 7 July 2022, there was a 3 hour partial hearing at which time the court file was marked to indicate that the evidence had closed.

22. On 22 September 2022, a further partial hearing took place in Wollongong before Assessor Harvey, where Mr Feng was assisted by an interpreter. On that occasion the remaining evidence was completed. The parties forwarded and relied upon written submissions to the Assessor to finalise the hearing of the matter.

23. On 24 April 2023, by means of a telephone and AVL connection, Assessor Harvey delivered his decision orally, whereby she quelled the dispute between the parties entering a verdict and judgment for Mr Haghparast in the amount of $10,000 plus interest and ancillairy fees.

24. On 2 May 2023. the Registrar of the Local Court prepared and entered a minute of judgment in favour of Mr Haghparast in the total sum of $12,028.62, including damages, interest, filing fees, and fees for the service of process.

25. On 18 May 2023, Mr Feng filed his summons commencing the present appeal.

26. On 14 July 2023, the appeal was due to be heard by another Judge of the Court in Wollongong. That hearing did not proceed. It was then stood over for a hearing to commence today, 14 August 2023.

Limited materials to be considered in determining the appeal

27. In addition to considering the submissions of the parties, both at first instance and on appeal, the determination of this appeal required an examination of the Local Court file, the pleadings, and the record of the proceedings in the Local Court, including the submissions of the parties and the Assessor’s reason for decision.

28. On 14 July 2023, in support of his appeal, Mr Feng produced a paginated bundle of submissions and documentary evidence with the enumeration pp 16-122. This material comprised 11 pages of submissions contained in 40 numbered paragraphs. The balance of the material produced by Mr Feng comprised copies of correspondence and contractual documents that had been considered by the Assessor. Mr Feng filed that material in the Registry on 4 August 2023.

29. On 25 July 2023, Mr Mr Haghparast filed a 3-page reply to the material filed by Mr Feng. In that reply, Mr Haghparast pointed out that, in effect, Mr Feng was impermissibly seeking to relitigate matters that had s already determined by the Small Claims Assessor. That said, Mr Haghparast’s submissions critically engaged with aspects of Mr Feng’s submissions and the annexed materials to refute the arguments Mr Feng had raised on 10 August 2023 and sent further submissions.

30. At the hearing today the parties had the opportunity of making further oral submissions and they did so.

31. In the course of submissions it became apparent that Mr Feng had proceeded on the erroneous premise that he is entitled to re-traverse all the matters that were litigated before the Assessor. It was was pointed out to him that such an approach was impermissible in view of the limited grounds upon which an appeal of this kind may be made; s 39(2) of the Local Court Act 2007 (NSW).

32. I now turn to an examination of the Assessor’s reasons for decision to determine whether a sound basis exists for Mr Feng’s appeal.

Assessor’s fact findings and reasons for decision

33. The Assessor’s reasons for decision commenced by outlining the legal and factual bases of Mr Haghparast ‘s claim, Mr Feng’s defence, and Mr Feng’s cross claim. The Local Court file shows that the Assessor had received and marked the written submissions of the parties. The transcript of the Assessor’s reasons for decision shows that she had appropriately considered the evidence and had laid out the following recorded findings of fact:

1. The parties had executed a standard form of building contract with one variation. That agreement was finalised on 7 August 2019;

2. The identified variation in the contract was that Mr Haghparast was not described as a builder, but as the supervisor of the construction works concerning Mr Feng’s granny flat;

3. The contract provided for “builders profit” for Mr Haghparast in the amount of $15,000, which was accepted by Mr Feng;

4. The date for completion of the works was stated to be subject to the timing of the supply of materials, including materials Mr Feng would be sourcing from China;

5. Mr Feng paid Mr Haghparast a contractual deposit of $5000;

6. The wording in the written notes which served to form part of the contractual terms between the parties were found to have been unclear, with the result that the Assessor found it was permissible for him to refer to the pre-contractual discussions to identify and construe the terms of the contract;

7. The Assessor found that the pre-contractual email communications between the parties formed “an excellent and reliable basis for the for the Court to understand the parties intentions” (sic): T5.26.

8. The Assessor construed the contract between the parties to involve Mr Haghparast providing supervisory and managerial services for the construction of Mr Feng’s granny flat, with subcontractors doing the work of the various trades that were required;

9. Mr Haghparast’s name had been added to the contract as the “builder” for the purpose of insurance, the implication being that was for a limited purpose, where Mr Feng needed the umbrella of Mr Haghparast’s licence.

10. Mr Haghparast had accepted responsibility and liability for any defects in the ultimate build of the granny flat;

11. it was not disputed that an Occupation Certificate had been granted and the building was complete and free of defects

12. Mr Haghparast had performed his side of the bargain in respect to the contracted work required of him. The Assessor elaborated upon that finding (at T6.28 – T6.46) as follows;

“I am satisfied on the plaintiff’ evidence that the plaintiff [Haghparast] has undertaken the work pursuant to the contract. In addition to taking out the insurance certificate, organising the screw piers certificate, organising the engineers to design the piers load, inspecting the piers to make sure they are correctly positioned, inspecting imported materials to make [sure] they are compliant, identifying inappropriate subcontractor and it was a subcontractor who did the building work, the plaintiff says, and there is no reason to doubt that he managed the storage of the materials. He did organise the construction certificate and there are photos of his work, health and safety signage on the defendant’s Colorbond fence.”

13. Mr Feng’s cross claim seeking a refund of the $5000 deposit paid to Mr Haghparast was not made out on the evidence.;

14. Notwithstanding Mr Feng’s complaint as to the non-provision of time accounting, the contract did not oblige Mr Haghparast to provide a breakdown of the time he had spent doing the work that Mr Feng was now requiring of him;

15. Mr Feng’s concern that Mr Haghparast was seeking payment “for not doing very much work” was in effect found to have been misconceived because Mr Haghparast had in fact done the work that was required of him pursuant to the contract between the parties;

16. There was no evidence that the work carried out by Mr Haghparast pursuant to the contract had been defective in any material way;

17. Mr Feng had not provided any evidence of the quantum of his claimed entitlement to compensation for the minor issues he had alleged, but which had not established. This finding has resulted in the dismissal of Mr Feng’s cross-claim.

34. At this point it should be observed that all of the above findings were open to be made by the Assessor on the evidence that was before her when she made her determination and dispositive orders.

35. On 2 May 2023, after the hearing had concluded, the Registry of the Local Court Small Claims Division incorporated the effect of the Assessor’s dispositive orders into a formal minute of judgment in the following terms, to be paid within 28 days:

1. Judgment for Mr Feng in the sum of $10,000.00;

2. Interest as claimed in the amount of $1,878.62;

3. Filing fees in the amount of $105.00

4. Service fees in the amount of $45.00;

5. Total: $12,028.62.

Consideration

36. In considering the merits of Mr Feng’s appeal, given the limited statutory grounds, three points emerge for consideration, as follows:

37. First, the Assessor’s reasons and the Small Claims Division file show that the evidence and the submissions in the proceedings were appropriately considered at the first instance hearing in that tribunal.

38. Secondly, it is plain on the face of the record that the findings made by the Assessor and the matters decided by her were well within her jurisdictional remit. Ultimately, both parties conceded that the Assessor had jurisdiction to determine the dispute. Therefore, the first element of Mr Feng’s appeal must be rejected as being without arguable merit.

39. Thirdly, I find that Mr Feng has been unable to demonstrate that he had been denied procedural fairness at any stage of the proceedings before the Assessor at the first instance hearing. At that time he had the assistance of an interpreter. His evidence was received and appropriately considered, as were his submissions. Therefore, the second element of Mr Feng’s appeal must be rejected.

40. Accordingly, in applying the terms of s 39(2) of the Local Court Act 2007 (NSW), I find that Mr Feng has been unable to show or sustain any arguable element that might support and make good the identified limited statutory grounds that operate to constrain his appeal.

Disposition

41. The foregoing reasons necessarily require that Mr Feng’s appeal must be dismissed.

Costs

42. Costs should follow the event, which requires that Mr Feng should pay any legitimate costs Mr Haghparast has incurred in resisting the dismissed appeal.

Orders

43. I make the following orders:

1. The summons filed on 18 May 2023 appealing the decision of the Small Claims Division of the Local Court on 24 April 2023 is dismissed.

2. The plaintiff / appellant is to pay the respondent defendant’s costs of the dismissed summons.

I certify that this and the 11 previous pages are the reasons for judgment of His Honour Acting Judge Levy SC

………………………………………………

Associate

Dated:

**********

Amendments

15 August 2023 - Catchwords - changed "decision was not within" to "decision was within".

Paragraph [34] - changed "his determination" to "her determination".

Decision last updated: 15 August 2023