Optrade Investments P/L v Telik Ceiling Systems P/L

[2004] NSWSC 424

CITATION:	Optrade Investments P/L v Telik Ceiling Systems P/L [2004] NSWSC 424
HEARING DATE(S):	17 May 2003
JUDGMENT DATE:	21 May 2004
JURISDICTION:	Common Law
JUDGMENT OF:	Master Harrison
DECISION:	(1) The appeal is dismissed; (2) The judgment and orders of the Small Claims Division of the Local Court at Parramatta dated 5 December 2003 are affirmed; (3) The summons is dismissed; (4) The plaintiff is to pay the defendant's costs as agreed or assessed.
CATCHWORDS:	Appeal decision of Small Claims Division of Local Court - receipt of notice
LEGISLATION CITED:	Local Court (Civil Claims) Act 1970 (NSW) - s 69(2A)
PARTIES :	Optrade Investments Pty Ltd (Plaintiff) Telik Ceiling Systems Pty Ltd (Defendant)
FILE NUMBER(S):	SC 10080/2004
COUNSEL:	Mr I Griscti (Plaintiff) Mr R Newell (Defendant)
SOLICITORS:	Mr P Moran Colin Biggers & Paisley (Plaintiff) Mr L Jackson, Jacksons Lawyers

LOWER COURTJURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):	128/03
LOWER COURT JUDICIAL OFFICER :	The Registrar - Small Claims Division

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

FRIDAY, 21 MAY 2004

10080/2004 - OPTRADE INVESTMENTS PTY LTD v
TELIK CEILING SYSTEMS PTY LTD

JUDGMENT (Appeal decision of Local Court - Small
Claims Division- receipt of notice)

1 MASTER: By summons filed 13 January 2004 the plaintiff seeks firstly an order that the judgment entered on behalf of the plaintiff against the defendant in the Small Claims Division of the Local Court at Parramatta in proceedings No 128/03 on 5 December 2003 be set aside; and secondly, an order that the matter be remitted to the Small Claims Division of the Local Court at Parramatta to be heard and determined according to law. The plaintiff relied on the affidavit of Joseph Di Giulio sworn 19 February 2004 and two affidavits of Jennifer Hammond sworn 20 February 2004 and 12 March 2004. The defendant relied on the affidavit of George Ananin sworn 3 March 2004 and the affidavit of Lance Edward Jackson sworn 8 March 2004. The plaintiff is Optrade Investments Pty Limited (Optrade). The defendant is Telik Ceiling Systems Pty Ltd (Telik).

2 At the outset, it may be helpful to make some brief comments concerning the remedy pursued by the plaintiff. Section 69(2A) of the Local Courts (Civil Claims) Act 1970 (NSW) allows an appeal to this Court from the Small Claims Division of a Court only on the grounds of lack of jurisdiction or a denial of natural justice. Section 69(4) of the Act provides that the court may determine an appeal by either (a) setting the judgment or order aside or (b) by varying the terms of the judgment or order or (c) by setting the judgment or order aside and remitting the matter for determination in accordance with the court’s directions or (d) by dismissing the appeal. The onus lies on the plaintiff to demonstrate that there has been a denial of natural justice.

Background

3 During 2000 and 2001 Optrade was involved in the development of a residential unit project at Vincent Street, St Marys. Optrade was the property developer in respect of the project and in early April 2001 also took over the role as builder following the termination of the original builder’s contract on the project. Between June and August 2000 Optrade engaged Telik to deliver materials and install ceilings at units in the project.

4 On 15 January 2001 Optrade paid Telik the sum of $34,996.78 for work completed in respect of the development. The outstanding balance of $6,357.72 was to be paid after the work was fully completed and an inspection of the work had taken place.

5 On 6 April 2001 Joseph Nardo (who owns 50% of the development) together with Milan Peric of Peric Brothers Painting Proprietary Limited (Peric Brothers), undertook an inspection on site. Mr Nardo informed Optrade that he had found faults in 21 units which required rectification work. There were defects in the cornices, unfinished gyprock joints, peeling cornices and a gap between the wall and the roof. Peric Brothers were engaged to rectify the defects at a cost of $10,000.00.

Grounds of Appeal

6 The grounds of appeal are that firstly, neither the plaintiff (the defendant in the proceedings below) nor its solicitors received advice; secondly, the plaintiff failed to appear at the hearing and verdict was given in favour of the defendant; and thirdly, that the plaintiff was not given a practical opportunity to meet the case against it and was denied natural justice.

The Local Court proceedings

7 On 3 February 2003 Telik commenced proceedings at Penrith Local Court. Optrade filed a notice of grounds of defence and a cross claim. On 9 July 2003 a pre-trial review took place. There was no appearance by the parties and the statement of liquidated claim and cross claim were struck out. The defendant filed a notice of motion to have the proceedings restored to the list. On 18 September 2003, by consent, the matter was restored to the list and was listed for 8 October 2003 for a further pre-trial review. On 8 October 2003 no date was given for a hearing but the parties were provided with a notice informing them that the hearing was to be advised and that any witness statements had to be filed no less than 21 days prior to the hearing date.

8 The matter was listed for hearing in the Local Court at Parramatta in December 2003. There was no appearance by Optrade and judgment was entered in favour of Telik in the sum of $8,412.37 inclusive of costs and interest. No order was made in relation to the cross claim.

Explanation for non-attendance

9 In her affidavit sworn 12 March 2004 the plaintiff’s solicitor, Jennifer Hammond, deposed that on 7 October 2003 she changed her place of practice from 25 to 21 Renwick Street, Leichhardt. The new premises being two doors along from the old one. Her former premises have not been tenanted since she left and for a period of approximately two months she was permitted by Mr Fuda (the owner of 21, 25 and 27 Renwick Street) to keep the key of 25 Renwick Street. During this time she attended 25 Renwick Street at least once each day for the purpose of collecting mail. Since early to mid December 2003 Ms Hammond’s mail addressed to her at the address of 25 Renwick Street has been passed onto to her by Mr Fuda’s secretary.

10 In November 2003 Ms Hammond received a bundle of documents from Telik in relation to the Local Court proceedings. On about 7 January 2004 Ms Hammond’s office received a notice from the Local Court at Parramatta dated 23 December 2003 stating that at the hearing on 5 December 2003 judgment was recorded in favour of Telik in the sum of $8,412.37 inclusive of costs and interest. Ms Hammond was abroad on leave at the time and was notified by email by Ms Foteades. Ms Hammond states that neither she nor her client received any notice from the Local Court notifying them of the hearing date on 5 December 2003. It appears that a notice was issued to the plaintiff by the court but not received by the plaintiff’s solicitor (see paragraph 8, affidavit, Lance Jackson 5 April 2004).

11 On 23 January 2004 after Ms Hammond returned from leave she conducted a search through her file to confirm that she had in fact not received a notice of hearing from the Local Court. During the course of her search she looked through the bundle of documents forwarded to her by Telik. Amidst these documents was a document addressed to Telik comprising a notice from the Local Court to Telik notifying it of the hearing on 5 December 2003. Ms Hammond’s says that the reason she did not notice the document was that it was among copies of documents she had seen previously such as a notice of grounds of defence and correspondence between the parties and she had formed the view that the brief statement, being the front page of the bundle, was the only document in the bundle that was new.

12 The plaintiff referred to Kojima Australia Pty Ltd v Australian Chinese Newspapers Pty Ltd [2000] NSWSC 1153 and Wakim v Matthiew Pty Ltd t/as Dove Migration Services [2002] NSWSC 405, where O’Keefe J made the following observations:

“The requirements of natural justice (or procedure fairness as it is now commonly referred to) apply to the Small Claims Division of the Local Courts. This is clear from the nature of the function to be performed by that Tribunal and the statutory recognition that is afforded to natural justice by s 29(2) of the Act.
The content of the requirements of natural justice is not fixed. The content fluctuates. The overarching requirement is that of fairness (National Companies and Securities Commission v News Corporation Ltd (1984) 156 CLR at 312 per Gibbs CJ with whom Brennan J agreed). For a court that normally involves a duty to:
(i) act judicially;
(ii) deal with the matter for decision without bias;
(iii) give each party the opportunity of adequately presenting its case;
(iv) observe the procedural and other rules provided for in the relevant statute;
(v) come to its decision with that sense of responsibility that is the necessary accompaniment of the duty to do justice.”

13 The plaintiff’s solicitor did actually receive a notice of hearing albeit addressed to the other party advising of the hearing date, namely 5 December 2003 which was contained within a bundle of documents served by the defendant’s solicitors. The fact that she received witness statements (even if she had seen them before) should have alerted her to the fact that the next step before the hearing had been taken. This is particularly so when she was aware that a hearing date had been allocated by the court. If the plaintiff’s solicitor had sorted through the bundle of documents she would have recognised the notice of hearing issued by the court. In these circumstances there is no denial of natural justice. The appeal is dismissed. The judgment and orders of the Small Claims Division of the Local Court at Parramatta dated 5 December 2003 are affirmed. The summons is dismissed.

14 Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the defendant’s costs as agreed or assessed.

Orders

15 The court orders that:

(1) The appeal is dismissed.

(2) The judgment and orders of the Small Claims Division of the Local Court at Parramatta dated 5 December 2003 are affirmed.

(3) The summons is dismissed.

(4) The plaintiff is to pay the defendant’s costs as agreed or assessed.
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Last Modified: 05/26/2004