Prestige Residential Marketing Pty Limited v A and M Short Investments Pty Limited

[2005] NSWSC 932

CITATION:	Prestige Residential Marketing Pty Limited v A & M Short Investments Pty Limited & Anor [2005] NSWSC 932
HEARING DATE(S):	14 September 2005
JUDGMENT DATE :	16 September 2005
JURISDICTION:	Common Law Division Administrative Law List
JUDGMENT OF:	Associate Justice Malpass at 1
DECISION:	The notice of motion is dismissed; the plaintiff is to pay the costs of the notice of motion; the exhibit may be returned.

CATCHWORDS:	Application to set aside orders - discretionary power exercisable upon satisfaction of threshold requirements - against good faith - sufficient cause - discretionary considerations.
LEGISLATION CITED:	Uniform Civil Procedure Rules 2005, Pt 36 r15
PARTIES:	Prestige Residential Marketing Pty Limited (Plaintiff) A & M Short Investments Pty Limited (First Defendant) Consumer Trader & Tenancy Tribunal (Second Defendant)
FILE NUMBER(S):	SC 30036/05
COUNSEL:	Mr J T Johnson (Plaintiff) Mr M A Bradford (First Defendant)
SOLICITORS:	Macedone Christie Willis (Plaintiff) Elliot Tuthill (First Defendant) I V Knight Crown Solicitor (Second Defendant)

LOWER COURT JURISDICTION:

- 5 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

Associate Justice Malpass

16 September 2005

30036 of 2005 Prestige Residential Marketing Pty Limited v A & M Short Investments Pty Limited & Anor

JUDGMENT

1 His Honour: On 27 May 2005, I delivered a judgment in this matter (the judgment). The plaintiff had appealed against a decision of the Consumer Trader & Tenancy Tribunal (the Tribunal) concerning a question of jurisdiction. The appeal failed. The summons was dismissed and the plaintiff was ordered to pay the costs of the summons.

2 The subject matter of the proceedings that were before the Tribunal was a claim for commission made by the plaintiff against the first defendant in the sum of $44,000.00. The applicant before the Tribunal was the first defendant. It was seeking relief pursuant to s36 of the Property, Stock & Business Agents Act 2002 (an order declaring that an amount of the money claimed against it was not due or owing by it to the plaintiff).

3 The jurisdictional objection was made by the plaintiff. It contended that there was a jurisdictional limitation in the sum of $25,000.00.

4 Both before the Tribunal and in this court, the first defendant had taken the position that it would abandon any claim in excess of $25,000.00 in order to bring it within the Tribunal’s jurisdiction should the need arise.

5 Subsequent to the disposition of the appeal, the plaintiff issued a creditor’s statutory demand for payment of a debt. It was dated 17 June 2005. The demand was in an amount of $19,000.00 (being the difference between the amount of the claim for commission made by the plaintiff and the jurisdictional limit of $25,000.00). It was served on or about 20 June 2005. The demand has brought about further proceedings between the parties which are presently on foot in the Equity Division in this court.

6 The application was listed for directions before the Tribunal on 6 July 2005. A transcript (which is an annexure to an affidavit sworn by Jasmin Helen Shaw dated 26 July 2005) sets out what took place before the Tribunal on that occasion. The directions hearing saw the application being transferred for further hearing before the Local Court at Sutherland.

7 On 15 July 2005, the plaintiff filed a notice of motion in the proceedings before this court. It sought, inter alia, the setting aside of the orders made on 27 May 2005 and the granting of relief that had been claimed in paragraphs 2 and 3 of the amended summons (which related to the question of the jurisdiction of the Tribunal).

8 The application is founded on provisions contained in Part 36 rule 15 of the Uniform Civil Procedure Rules 2005 (the Rules). The provisions are in the following form:-

36.15 General power to set aside judgment or order
(1) A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith.

9 It is contended by the plaintiff that the orders of the court were made against good faith.

10 In seeking to establish the “against good faith” limb of the rule, the plaintiff looks to, inter alia, what was said by counsel on behalf of the first defendant to this court concerning the abandonment of any excess (it has been described as a representation).

11 Further, it is said that the appeal was dealt with and decided on the basis of that representation. Whether or not that was the position, I shall proceed to determine this application on the assumption that the appeal was so decided.

12 For completeness, I should mention that in the material reference has been made to the question of amendment of the first defendant’s application. The suggestion may have been made that the determination of the appeal was in some way dependant on that being done. If that is what was being put, I should make it clear that it does not correctly state my understanding of the position (see paragraph 17 of the judgment).

13 What is contemplated by the requirement of “on sufficient cause being shown” has excited little argument. It is a matter that has really not been addressed by the plaintiff and the first defendant submits that it has not been shown.

14 It may be a matter that has to be dealt with on a case by case basis. Clearly cause has to be shown that is sufficient to justify the disturbing of the judgment or order.

15 Rule 15(1) of the Rules confers a discretionary power on the court. It is exercisable when one of the three limbs of the rule (in this case, “against good faith”) is made out and on sufficient cause being shown.

16 In exercising the discretionary power, the court has regard to the relevant circumstances of the particular case before it.

17 The transcript of what took place during the directions hearing before the Tribunal on 6 July 2005 reveals that the first defendant maintained its stance that it would abandon any excess above the $25,000.00 limit. It also reveals that the Tribunal itself raised the matter of the sum of $19,000.00 and of no payment having been made in respect of it. The transcript also reveals that the first defendant had given instructions to its legal advisors that it was not willing to pay the sum of $19,000.00.

18 It was this matter of the payment of the sum of $19,000.00 (which had been first raised by the Tribunal on 6 July 2005) and the unwillingness of the first defendant to pay it that led to the Tribunal making the decision to transfer the proceedings to the Local Court. This was a decision made by the Tribunal of its own motion.

19 The plaintiff bears the onus of satisfying the court of an entitlement to relief pursuant to the rule. In my view, it has failed to discharge that onus.

20 I am not satisfied that the judgment was given against good faith. I am not satisfied that sufficient cause has been shown to set aside the orders made by the court on 27 May 2005. Even if a different view had been taken on these matters of threshold requirements, I would not have been satisfied that the discretionary power should be exercised in the circumstances of this case.

21 I shall briefly refer to matters which are relevant to certain of what was referred to in the preceding paragraph. I am not satisfied that any basis has been shown for the disturbing of the views expressed by this court in the judgment. It seems to me that what is sought by the plaintiff lacks utility. What has happened since the judgment is at least in part a consequence of its own conduct.

22 It was the plaintiff that made the jurisdictional objection. The proceedings are no longer before the Tribunal. They are now in the Local Court. This was effected by a transfer that was not opposed by the plaintiff. It has not brought any appeal against the decision of the Tribunal to transfer the proceedings to the Local Court.

23 The Local Court can now proceed to determine the dispute without any jurisdictional complications. So far as the parties to it are concerned, any questions of Tribunal jurisdiction are now academic.

24 Whilst the plaintiff has now lost the benefit it may have obtained from the first defendant’s representation, it was a benefit that could only be retained whilst the proceedings remained before the Tribunal. What has happened has produced a result that is not otherwise disadvantageous to the plaintiff. It was a result that may have been produced earlier if a transfer application had been made by the plaintiff (rather than by the making of the objection and the bringing of the appeal).

25 In submissions made on behalf of the plaintiff brief reference has been made to the inherent jurisdiction of the court. Whilst this aspect of the application has been the subject of limited submission, for completeness I should express my view that recourse to such remedy does not assist the plaintiff in the circumstances of this case.

26 The notice of motion is dismissed. The plaintiff is to pay the costs of the notice of motion. The exhibit may be returned.

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