Ryan v Cheqrouni - [2023] ACTSC 329

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Ryan v Cheqrouni
Citation:	[2023] ACTSC 329
Hearing Dates:	18 October 2023 and 1 November 2023
Decision Date:	16 November 2023
Before:	Mossop J
Decision:	1. Pursuant to rule 1432 of the Court Procedures Rules, proceedings AP73 of 2020 are transferred from the Magistrates Court to the Supreme Court. 2. Costs of the application in proceedings dated 8 September 2023 are the plaintiffs’ costs in the cause. 3. List the matter in the registrar’s list at 9.30am on 20 November 2023 for directions.
Catchwords:	CIVIL LAW – PRACTICE AND PROCEDURE – Application to transfer proceedings – where claim constituted by claims of liquidated and unliquidated damages – where amount claimed in liquidated damages exceeds jurisdictional limit of Magistrates Court – whether transfer should be granted – transfer allowed
Legislation Cited:	Court Procedures Rules 2006 (ACT), r 1432
Cases Cited:	Ex parte Delponte; Re Thiess Bros Pty Ltd [1965] NSWR 1468 Yi Qing Jin v Yang Ai [2011] ACTSC 70
Parties:	Mark Ryan ( First Plaintiff) Mary Southorn (Second Plaintiff) Mostafa Cheqrouni (Defendant)
Representation:	Counsel Self-represented ( First Plaintiff) Self-represented (Second Plaintiff) No appearance (Defendant)
Solicitors Self-represented ( First Plaintiff) Self-represented (Second Plaintiff) No appearance (Defendant)
File Number:	SC 365 of 2023

MOSSOP J:

Introduction

1․By way of an application in proceeding filed on 8 September 2023, the plaintiffs apply for the transfer of their claim from the Magistrates Court to the Supreme Court. At this stage of the proceedings, the claim is for damages arising from sanding and polishing services rendered to them by the first defendant.

Procedural history in the Magistrates Court

2․In 2020, the claim commenced in the Magistrates Court against two defendants, Mr Cheqrouni and Mr Gardiner. On 12 July 2023, Magistrate Temby, by consent, ordered judgment for the second defendant, Mr Gardiner.
3․On 4 September 2023, the Magistrates Court refused to allow the plaintiffs to file the Third Amended Statement of Claim on the basis that the claim appeared to exceed the limit of the jurisdiction of the Magistrates Court. On that day, orders were made by the Registrar of the Magistrates Court directing the first and second plaintiffs to apply to the Supreme Court for the transfer of the matter by 11 September 2023.
4․Since the commencement of the claim, the first defendant, Mr Cheqrouni, has not entered a Notice of Intention to Respond. However, the first defendant did appear by telephone on a number of occasions up until 18 March 2022. Orders were made on 29 November 2021 that, subject to any future notices of change of address for service, the defendant could be served by ordinary post at an identified residential address.
Procedural history in the Supreme Court
5․On 18 September 2023, the matter was before the Senior Deputy Registrar. Orders were made requiring the plaintiff to serve the application and supporting material on the defendant and for the plaintiff to file an affidavit of service. On 27 September 2023, an affidavit of service…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ryan v Cheqrouni

Details

AGLC: Ryan v Cheqrouni [2023] ACTSC 329
Case: [2023] ACTSC 329
Decision Date

CaseChat Overview and Summary

The case of Ryan v Cheqrouni involved the plaintiffs, Mark Ryan and Mary Southorn, bringing an application to the Supreme Court for the transfer of their claim from the Magistrates Court. The plaintiffs had initially filed their claim in the Magistrates Court, but the court found that the amount claimed in liquidated damages exceeded its jurisdictional limit, prompting the plaintiffs to seek a transfer to the Supreme Court. The defendant, Mostafa Cheqrouni, did not appear in either court.

The legal issues before the court were whether the plaintiffs' claim, which included both liquidated and unliquidated damages, should be transferred to the Supreme Court given that the amount claimed in liquidated damages exceeded the Magistrates Court's jurisdictional limit. Additionally, the court needed to consider whether there were any reasons to deny the transfer of the proceedings.

The court examined the nature and quantum of the claim against the first defendant, which arose from sanding and polishing services that resulted in damages to the plaintiffs' homes. The plaintiffs sought compensation for various damages, including the cost of the services, repair costs, and personal distress caused by the defendant's negligence. The court noted that the liquidated component of the claim was for approximately $385,000, well exceeding the Magistrates Court's jurisdictional limit.

The court referenced relevant legal principles and authorities, including the Court Procedures Rules 2006 (ACT) and past cases, to determine the appropriate course of action. It held that if the plaintiffs had a cause of action based on reasonable grounds, they should be permitted to have their claim adjudicated by the appropriate tribunal. Given that the defendant had been served with the application but did not appear, and no other reasons were apparent to deny the transfer, the court concluded that the transfer should be granted.

The court ordered the transfer of the proceedings from the Magistrates Court to the Supreme Court, with the costs of the application being the plaintiffs' costs in the cause. The matter was listed for directions on 20 November 2023.

Orders