Kraljevo Building Construction Company v Duckworth

[2003] NSWSC 920

CITATION:	Kraljevo Building Construction Company v Duckworth & Anor [2003] NSWSC 920
HEARING DATE(S):	7 October 2003
JUDGMENT DATE:	13 October 2003
JURISDICTION:	Common Law Division
JUDGMENT OF:	Master Malpass
DECISION:	The Summons is dismissed. The plaintiff is to pay the costs of the Summons. The Exhibits may be returned.
CATCHWORDS:	Ex parte hearing - application for rehearing not granted - no denial of procedural fairness.
LEGISLATION CITED:	Consumer, Trader and Tenancy Tribunal Act 2001, s 65, s 67. Consumer, Trader and Tenancy Tribunal Regulation 2002, cl 29.
CASES CITED:	N/A
PARTIES :	Kraljevo Building Consruction Company Pty Ltd (Plaintiff) v James Duckworth (First Defendant) Consumer, Trader & Tenancy Tribunal (Second Defendant)
FILE NUMBER(S):	SC 11010 of 2003
COUNSEL:	E Pender Plaintiff) Ben Clark (First Defendant) N/A (Second Defendant)
SOLICITORS:	E J Cressy (Plaintiff) Meehans Solicitor Corporation (First Defendant) I V Knight - Crown Solicitor - Submitting Appearance (Second Defendant)

LOWER COURTJURISDICTION:	Consumer, Trader & Tenancy Tribunal
LOWER COURT FILE NUMBER(S):	HB 01/80538
LOWER COURT JUDICIAL OFFICER :	N/K

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Master Malpass

Monday 13 October 2003

11010 of 2003 Kraljevo Building Construction Company Pty Ltd v James Duckworth & Anor

JUDGMENT

1 MALPASS: The plaintiff is a builder. Mr Ralph Radovac is its sole director.

2 The plaintiff built certain premises. The first defendant became the owner of those premises. Disputes arose between those parties concerning the building work.

3 An application was brought in the Consumer, Trader and Tenancy Tribunal (the Tribunal) by the first defendant. On 3 March 2003, an ex parte hearing took place before the Tribunal. The plaintiff did not appear. After hearing from the first defendant, the Tribunal ordered the plaintiff to pay a sum of $13,133.38 in respect of defective building work and the sum of $8,714.50 in respect of expert’s costs.

4 The plaintiff applied for a rehearing. The application for rehearing was not granted. It was dealt with on 2 April 2003 and the plaintiff was advised of the result by Notice of Order dated 7 April 2003.

5 On 28 April 2003, the plaintiff filed a Summons in this Court. It seeks to challenge the not granting of the rehearing application.

6 The Summons was heard on 7 October 2003. The application was vigorously opposed. Both parties adduced evidence. Largely, what was put forward on behalf of the plaintiff was not before the Tribunal. Both parties were legally represented and counsel addressed the court.

7 The originating process does not contain grounds of appeal. The claim made in paragraph 4 suggests that the not granting of the rehearing was to be presented as an error of law and unreasonable in all of the circumstances.

8 At the commencement of the hearing, Counsel for the plaintiff sought to agitate denial of natural justice as the avenue of challenge.

9 Strictly speaking, such an avenue of challenge is not presently open to the plaintiff. No application to amend was made. However, for purposes of completeness, I shall deal with it briefly in due course.

10 It is not suggested that there was any error of law. Indeed, no relevant error of law appears from the material.

11 In these proceedings the plaintiff bears the onus. It must demonstrate that there is a basis for disturbing the decision made by the Tribunal.

12 As at 9 January 2003, both parties were legally represented before the Tribunal. The application by then had generated a considerable history.

13 The matter was listed for directions on that date. The parties appeared with their legal representatives. Directions were given (in the form of a Timetable). They expected to be given a hearing date in the near future. The first defendant took steps to comply with the directions and served his documentation on the plaintiff. The plaintiff did not comply with the directions and appeared to do nothing further in the application.

14 By written notice dated 17 January 2003, the Tribunal purported to give notice of a formal hearing (requiring the attendance of witnesses) to take place on Monday 3 March 2003. The plaintiff does not dispute that the Tribunal sent a notice to the two addresses nominated by the plaintiff for service of notices. The plaintiff does not dispute that it received other notices sent to those addresses.

15 The Consumer, Trader and Tenancy Tribunal Act 2001 (the Act) and the Consumer, Trader and Tenancy Tribunal Regulation 2002 (the Regulation) contain provisions enabling the Tribunal to proceed ex parte. The Tribunal may proceed to hear a matter in the absence of a party who has failed to attend the hearing inter alia if it is satisfied that the notice of the hearing was duly served on the party (clause 29 of the Regulation). It appears that the Tribunal proceeded to hear the application, in the absence of the plaintiff, on that basis.

16 The only evidence advanced by the plaintiff on the question of notice is what appears in an affidavit affirmed by Mr Radovac on 10 August 2003. The affidavit contains the following:-

“7. I had not received any notification of the hearing date.”

17 The non-appearance of the plaintiff is otherwise left unexplained. Its default was also left unexplained.

18 He was not given notice to attend for cross-examination. The court was informed that he was not present in court on the day of the hearing of the appeal.

19 Curiously, although he says that he did not receive any notice of the hearing date, an interpreter which he required was in attendance on 3 March 2003.

20 The plaintiff is out of time to bring an appeal against the decision made on 3 March 2003. No application has been made for an extension of time. The only challenge made is to the not granting of the rehearing.

21 The rehearing was not granted for the following reasons:-

“Written Reasons
Respondent had not complied with directions made by the Tribunal on 9/1/03. No further documents were filed with the Tribunal. All evidence was taken into consideration. A hearing notice was sent to both addresses nominated by the respondent”.

22 I have carefully considered all of the material. I am not satisfied that the plaintiff has discharged the onus of demonstrating that the decision of the Tribunal should be disturbed. Indeed, I am not satisfied that there was any denial of procedural fairness (s 65 of the Act) or any error in the deciding of any question with respect to a matter of law (s 67 of the Act).

23 The Summons is dismissed. The plaintiff is to pay the costs of the Summons. The Exhibits may be returned.

**********

Last Modified: 10/13/2003