Gibbs v Moussa

[2003] NSWSC 1208

CITATION:	GIBBS & ANOR v MOUSSA & ANOR [2003] NSWSC 1208
HEARING DATE(S):	2 December 2003
JUDGMENT DATE:	2 December 2003
JURISDICTION:	Common Law
JUDGMENT OF:	Adams J at 1
DECISION:	Appeal dismissed with costs; Costs of the appeal to be assessed on an indemnity basis
CATCHWORDS:	Appeal from Master - when must go to Court of Appeal
LEGISLATION CITED:	par 4 Pt 3 of Schedule D of the Rules of the Supreme Court Rules of Court specified in Pt 60
CASES CITED:	Gill v Residential Tribunal (2001) 53 NSWLR 425
PARTIES :	Peter Gibbs (First Plaintiff) Ian Tompsett (Second Plaintiff) Robert Peter Moussa (First Defendant) Maree Ann Moussa (Second Defendant)
FILE NUMBER(S):	SC 20572/99
COUNSEL:	Mr A M Gruzman (Plaintiffs/respondents) No appearance for the defendants
SOLICITORS:	Meyer Clapham (Plaintiffs/respondents) Ethringtons (Defendants)

Ex tempore - revised

THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

ADAMS J

TUESDAY 2 DECEMBER 2003

020572/99 - PETER GIBBS & ANOR v ROBERT PETER MOUSSA & ANOR

JUDGMENT

1 HIS HONOUR: This matter has a most unfortunate history. On 20 November 2002 Master Malpass gave judgment for the plaintiffs in a claim arising out of an agreement made between them and the defendants, amongst others, in April 1999. The Master's reasons for judgment sets out a chronology of failure by the defendants to comply with or attend proceedings ancillary to the hearing.

2 The Court allocated on call-up 20 November 2002 as the hearing date and the defendants were notified of this but appeared only by counsel for the purpose of making an application for adjournment. No evidence was adduced to support the adjournment application and it appears that the sole ground for the application was, in substance, that costs thrown away by reason of the adjournment would be paid and a tight timetable agreed to. Not surprisingly, the Master refused that adjournment in the face of the plaintiffs' opposition to it. The defendants were not in Court, although counsel informed the Court that they were on their way. He was unable to give any indication of when they might arrive.

3 Following the refusal of the adjournment application the Court proceeded with the hearing of the plaintiffs' claim, as had been foreshadowed. During the hearing, counsel for the defendants, after being absent for a time, returned and informed the plaintiffs' solicitor that the defendants had been involved in a car accident and were still on their way to Court. It was said that they would arrive in about half an hour. They did not do so.

4 On 31 January 2003 the defendants gave notice of an appeal from the orders of Master Malpass seeking, amongst other things, an order granting leave to extend the time for its institution. On 10 February 2003 consent directions were made relating to the filing and serving of affidavits. The defendants filed and served affidavits on 24 February 2003. It is sufficient to say that those affidavits do not explain adequately the reasons for the defendants' failure to appear at the trial before the Master.

5 At all events the affidavits, for reasons which will become apparent, have not been read in these proceedings. I have merely looked at them to consider whether I should raise with the plaintiffs' counsel matters relating to his application to proceed with today's hearing.

6 On 12 September 2003 this matter was listed for call-over before Justice Bell. The defendants were represented by a solicitor. On that day her Honour listed the appeal for hearing today. I do not doubt that it is appropriate to infer that the appellants' solicitor advised them of this date.

7 On 1 October 2003 a notice of intention to cease to act was served by the defendants' solicitors. On 1 December 2003 Mr Brackenreg, the plaintiffs' solicitor, spoke to a Mr Dominello who had been the solicitor on the record for the defendants. Mr Dominello informed Mr Brackenreg that he did not have instructions to appear today on behalf of the defendants, although he confirmed that he had advised them of the hearing date. He provided Mr Brackenreg with a telephone number of the defendants to which was attached a facsimile machine. Mr Brackenreg sent a fax to that number confirming that the hearing was set down today for two days and asked them to contact him if they intended to attend or be represented. There was no response to that letter.

8 On 14 November 2003 Mr Brackenreg wrote to the defendants noting that they were no longer legally represented and pointing out to them, amongst other things, that their application for a review of the Master's decision "is misconceived and doomed to failure" as well as indicating that it was proposed to seek indemnity costs in the event that judgment was given in the plaintiffs' favour. That letter also was ignored. At 10 o'clock this morning the defendants failed to appear when their names were called in the conventional way and also at 11 o'clock, to which time I had adjourned the proceedings to give them some latitude of time. In the circumstances I think it right to consider the jurisdictional point raised by the plaintiffs without further delay.

9 The proceedings were referred for trial before the Master under par 4 Pt 3 of Schedule D of the Rules of the Supreme Court on 19 November 2002 by Justice Whealy. Appeal from the Master is governed by the Rules of Court specified in Pt 60. So far as is relevant they provide:

“9 Interpretation
In this Division, Court means the Court constituted by a Judge.
10 Right of appeal
An appeal shall lie to the Court from any decision of a master, except in any case where an appeal lies to the Court of Appeal pursuant to rule 17.
17 Cases for appeal
An appeal shall lie to the Court of Appeal in accordance with section 101 and 103 of the Act, subject however to the leave of the Court of Appeal in any case to which subsections (2) and (4) of section 101 apply, from any decision of the Court in a Division constituted by a master:

(a) upon a trial pursuant to Schedule D Part 3 paragraphs 1, 2, 3, 3A, 4 (a), 8, 9, 17, 17A, 24, 25, 26, 27 and 28,

(a1) in proceedings referred pursuant to Schedule D Part 3 paragraphs 5, 5A and 5B, …”

10 It seems to me to be beyond argument that there can be no appeal to a judge of the Court from a judgment of the Master made in the present circumstances and that the only available appeal is to the Court of Appeal. I am fortified in this view by the judgment of Justice Dunford in Gill v Residential Tribunal (2001) 53 NSWLR 425. It follows that the appeal must be dismissed with costs.

11 Having regard to the terms of the letter of 13 November 2003, to which I have already referred, the costs of the appeal are to be assessed on an indemnity basis.

**********

Last Modified: 02/02/2004