Riad Awad v Fruitshop Fitouts Pty Limited

[2006] NSWSC 300

CITATION:	Riad Awad v Fruitshop Fitouts Pty Limited [2006] NSWSC 300
HEARING DATE(S):	18 April 2006
JUDGMENT DATE :	26 April 2006
JURISDICTION:	Common Law Division
JUDGMENT OF:	Associate Justice Malpass at 1
DECISION:	The summons is dismissed; the question of costs is reserved.
CATCHWORDS:	Appeal brought out of time - from decision on misconceived application - no evidence to explain delay.
LEGISLATION CITED:	Arbitration (Civil Actions) Act 1983 Local Courts (Civil Claims) Act 1970
CASES CITED:	El Ali v Government Insurance Office of New South Wales & Anor (1988) 15 NSWLR 303
PARTIES:	Riad Awad (Plaintiff) Fruitshop Fitouts Pty Limited (Defendant)
FILE NUMBER(S):	SC 15826/05
COUNSEL:	Mr C Vaccaro (Plaintiff) Ms M Phelps (Defendant)
SOLICITORS:	Mr C Vaccaro (Plaintiff) James Lahood & Associates (Defendant)
LOWER COURT JURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S):	8087/03
LOWER COURT JUDICIAL OFFICER :	Rabbidge LCM
LOWER COURT DATE OF DECISION:	10/04/2005

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Associate Justice Malpass

26 April 2006

15826 of 2005 Riad Awad v Fruitshop Fitouts Pty Limited

JUDGMENT

1 His Honour: The plaintiff conducted a fruit shop at North Rocks Westfield shopping centre. He entered into a contract with the defendant for the fitting of it out. The defendant purported to carry out the work. The plaintiff contends that the work was not completed and it was otherwise defective.

2 In July 2003, the defendant commenced proceedings in the Local Court to recover the cost of the work. The plaintiff filed a defence.

3 The matter was referred for arbitration. An arbitration took place on 11 June 2004. An award was made in favour of the defendant in the sum of $13,444.40 plus interest.

4 The time in which a rehearing may be sought was allowed to elapse. Thereafter, in August 2004, the plaintiff sought a rehearing. It was dealt with ex parte in chambers by a registrar. The registrar granted the application.

5 Thereafter, for some time, the matter remained with the Local Court as a defended proceeding. In November 2004, the plaintiff sought a report from a builder. It was obtained in February 2005. In April 2005, the defendant brought an application to challenge what had been done by the registrar. There is issue between the parties as to whether that application was served. The application was heard on 13 May 2005 in the absence of the defendant. The defendant was successful.

6 The award came to acquire the status given to it by s21H(5) of the Local Courts (Civil Claims) Act 1970. The subsection is as follows:-

Except in the case of an action in respect of which an order for rehearing has been made under section 18 of the Arbitration (Civil Actions) Act 1983 , the award of an arbitrator in relation to an action referred to the arbitrator under subsection (1) shall, after the expiration of the time prescribed by the rules for the purposes of this subsection, be deemed to be a judgment or order of the court by which the matter was referred to the arbitrator.

7 Thereafter, the plaintiff made an offer to settle the proceedings. The offer was rejected by the defendant.

8 In September 2005, the plaintiff filed another notice of motion. The relief sought therein included the following:-

1. The Defendant’s application for re-hearing of the arbitrated matter be re-instated and judgment set aside.

9 It seems that this may have been later amended. The amended application is not in evidence in this court.

10 Judgment on that application was delivered on 4 October 2005. The Magistrate delivered written reasons. The written reasons contain the following:-

10 Having considered all the material and the submission made to the Court, I strike out the Motion and confirm the judgment entered in accordance with the Arbitrators award.

11 On 12 December 2006, the plaintiff brought proceedings in this court. The purport of the proceedings is to challenge the decision of 4 October 2005.

12 The plaintiff contends that there has been error in point of law. He accepts that he needs both leave and an extension of time.

13 Although the plaintiff has sworn an affidavit in the proceedings, it does not purport to provide material to explain how the appeal came to be brought out of time. This was an event that followed a long history of default and delay. For this reason alone, the proceedings are doomed to failure.

14 However, because there has been argument on other matters, I shall briefly deal with the question of the merits of the appeal. An immediate problem is to identify the nature of the application that was heard and disposed of.

15 The Magistrate and the parties appear to have taken the approach that what should be considered was an application to set aside a default judgment. The Magistrate appears to have had regard to, inter alia, what are usually regarded as relevant matters in such an application (delay, explanation for delay and defence on the merits). He placed considerable weight on delay.

16 The parties in this court have proceeded on the basis that it was hearing an appeal from such a discretionary decision.

17 What can be done by the Court is governed by legislation and the rules. The relevant legislation is the Arbitration (Civil Actions) Act 1983. Sections 16A, 17, 18, 18A and 18B are presently of significance. Except to the extent prescribed therein, an award made under the Act is final and conclusive. An application may be made for a rehearing. If an order is made for a rehearing, the award ceases to have effect.

18 In the context of this legislative framework, an application to set aside the judgment was misconceived (see El Ali v Government Insurance Office of New South Wales & Anor (1988) 15 NSWLR 303).

19 In these circumstances, it would be futile to grant an extension of time.

20 The summons is dismissed. The court has been asked to reserve the question of costs and I do so.

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