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 was filed by the plaintiff, in which the process server attested to having served the defendant on 23 September 2023 at 10.20am with the following documents:

(a)Application in Proceeding;

(b)Third Amended Statement of Claim in Magistrates Court of Australian Capital Territory matter AP73 of 2020;

(c)Application in Proceeding;

(d)Affidavit of Mark Ryan sworn on 8 September 2023;

(e)Application in Proceeding; and

(f)Affidavit of Mary Southorn sworn on 8 September 2023.

As there is only one application in proceeding on the file, the three references to the application in proceedings was curious but the position was made clear as I will explain shortly. Unfortunately copies of the actual documents that had been served were not annexed to the affidavit so there was some uncertainty as to what had occurred.

6․On 6 October 2023 the matter was before the Senior Deputy Registrar. Both plaintiffs appeared in person. The first defendant did not appear. Orders were made listing the application before me at 10am on 18 October 2023. Subsequently, in chambers, the Senior Deputy Registrar amended the listing time to 2pm and directed the registry to inform the plaintiffs. The defendant were not advised of the updated listing time.

7․When the matter was before me on 18 October 2023, I made an order that required the registry to give notice of an adjourned date to the first defendant at an email address previously used by him. This was ultimately done on 20 October 2023.

8․When the matter was called on 1 November 2023 there was no appearance by the first defendant. The plaintiffs anticipated the filing of an affidavit from the process server making clear what was served on the first defendant. An affidavit of Mark Miller of 31 October 2023 which was subsequently filed made clear that on 23 September 2023 he had served copies of each of the documents referred to earlier, including three copies of the application in proceedings dated 8 September 2023.

Evidence

Mr Mark Ryan

9․Filed in support of the application are two affidavits of Mr Ryan, filed on 8 and 20 September 2023. Variously annexed to these affidavits appear three versions of the “Third Amended Statement of Claim”. The affidavit filed on 8 September 2023 first annexes the first page of a document titled “Third Amended Statement of Claim” bearing a “Refiled” stamp from the Magistrates Court dated 1 September 2023. This appears to be the version of the document which was rejected by the registry of the Magistrates Court because it exceeded the jurisdictional limit of that court.

10․The affidavit then annexes a document titled “Draft Third Amended Statement of claim” which does not bear any stamp. This appears to be the version of the claim which the plaintiffs would wish to pursue in the Supreme Court.

11․The affidavit filed on 20 September 2023 attests to the fact that the plaintiff served the defendant with the documents annexed to the affidavit on 18 September 2023 by email. It annexes a “Third Amended Statement of claim” with the word “Draft” crossed out. This version of the document contains a claim against the second defendant, whose name appears crossed out on the cover of this version of the claim (and every other version of the claim). The striking out of paragraphs is different to that which appears in the earlier affidavit.

12․Each document bears the words “With leave of the Court, Magistrate Temby on 12 July 2023” below its title. That assertion is inconsistent with the history of the matter.

Ms Mary Southorn

13․Also relied upon in support of the application is an affidavit of Mary Southorn dated 8 September 2023, which annexes a series of quotes and estimates which correspond to amounts claimed in the Third Amended Statement of Claim as well as quotes and receipts for items alleged to have been required to be replaced due to weather or water damage or theft.

14․A second affidavit of Ms Southern dated 9 November 2023 was also relied upon. It has two annexures, each containing correcting errors contained in the draft Amended Statement of Claim which is sought to be relied upon in the Supreme Court. The errors involve the striking out of words relating to the second defendant, for whom judgment has been entered for by Magistrate Temby on 12 July 2023.

Nature and quantum of the claim against the first defendant

15․The claim arises from sanding and polishing work done by the defendant on two homes owned by the first and second plaintiffs. The plaintiffs had contracted with the first defendant for the sanding of their floorboards. To permit the defendant access to the floorboards, the plaintiffs moved their furniture and other belongings outside in their yard. They covered their belongings with protective tarpaulins. On 27 October 2014, the work commenced.

16․On 5 November 2014, the plaintiffs observed that the defendant’s work had resulted in the floor surfaces in the upstairs and downstairs portion of their home being different in colour. This is described as “the first default” in the Statement of Claim.

17․On 10 November 2014, the plaintiff observed undulations and burn marks on the floor surface. This is described as “the second default”.

18․The same defaults are alleged with respect to the other home the subject of the claim.

19․Paragraphs 14 and 15 of the Third Amended Statement of Claim list the following damages which are said to flow from the first and second default:

(a)The cost of the services provided by the defendant on the first home.

(b)The future cost to the plaintiffs for the work done to the home to repair the damage caused by the first defendant at the first home and the extra costs incurred in repairing the floors at the second home.

(c)The cost of the materials used by the plaintiffs to rectify some of the defaults.

(d)The exposure of the plaintiff’s furniture and belongings to the natural elements.

(e)The “mental torment … stress … anxiety and depression due to the loss of valuable and personal belongings [due to] the negligence … of the Defendant”.

20․Part of the Third Amended Statement of Claim deals with the damages arising from the damage and destruction of the property left outside of the home during the works. The property is said to be valued at $250,000. A claim for $201,000 appears to be made but the pleading is not clear. Further, there is a claim for $184,000, which comprises the cost to the plaintiff of repairing the floors following the alleged defaults of the defendant. The breakdown of these figures and an amount sought for costs are set out after paragraph 20.3 of the claim. Thus, in round terms, the liquidated component of the claim is for $385,000, an amount well in excess of the jurisdictional limit of the Magistrates Court.

Test for transfer

21․Rule 1432 of the Court Procedures Rules 2006 (ACT) empowers the Supreme Court to order that a proceeding be transferred to the Supreme Court. The provision does not explain the considerations which the court must have reference to in determining whether a transfer should occur.

22․In Yi Qing Jin v Yang Ai [2011] ACTSC 70, Refshauge J made reference to Ex parte Delponte; Re Thiess Bros Pty Ltd [1965] NSWR 1468 (at 1469) in which Asprey J, described the position in relation to claims for personal injuries exceeding the jurisdictional limit of the District Court as follows:

I think that if a person has, as the plaintiff alleges he has, a cause of action based upon reasonable grounds which would entitle him to be compensated beyond the statutory figure permitted in the District Court, then he should be, in ordinary circumstances, permitted to have that cause of action adjudicated upon by the appropriate tribunal. If, however, he is guilty of some conduct, such as delay or otherwise, which would prejudice the defendant’s chance of success in such an action, then, generally speaking, the plaintiff ought not to be entitled to have the discretion under s. 47 exercised in his favour.

23․That is the situation here. The plaintiffs seek to agitate a claim which seeks more than the jurisdictional limit. Part of the claim is liquidated, part of it is unliquidated. The liquidated part exceeds the jurisdictional limit. While the claim is a large one, having regard to its subject matter, it is not on its face an abuse of the court’s process. The plaintiffs appear to be entitled to have it adjudicated. Given that the relevant defendant has been served with the application but has not appeared, there is not another articulated reason why the transfer should not be made, nor is one apparent. The proceedings will therefore be transferred from the Magistrates Court to the Supreme Court. The costs of the application will be the plaintiffs’ costs in the cause.

Orders

24․The orders of the Court are:

1. Pursuant to rule 1432 of the Court Procedures Rules 2006 (ACT), 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.

I certify that the preceding twenty-four [24] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date:

**************

Amendments

24 November 2023	Where “Self-represented” appears prior to (Defendant), delete and replace with “No appearance”.	Cover page
Replace “defendants” with “defendant”	Paragraph [6].
Replace “Paragraph” with “Paragraphs”	Paragraph [19]
Replace “lists” with “list”	Paragraph [19]
Replace “as” with “is”	Paragraph [23]
Replace “that” with “it”	Paragraph [23]