Satchi & Satchi Australia Pty Limited v Sanjay Sarma trading as Adidev Enterprises
[2007] NSWSC 642
•27 June 2007
CITATION: Satchi & Satchi Australia Pty Limited & Ors v Sanjay Sarma trading as Adidev Enterprises [2007] NSWSC 642 HEARING DATE(S): 21/06/2007
JUDGMENT DATE :
27 June 2007JUDGMENT OF: Associate Justice Malpass DECISION: The Notice of Motion is dismissed. The Summons is dismissed. The plaintiffs are to pay the costs of the procedings. CATCHWORDS: Appeal from Local Court - judgment entered in absence of plaintiffs - Summons in this Court struck out of list by reason of non-appearance of plaintiffs - review of refusal to reinstate to the list heard with appeal - denial of natural justice PARTIES: Satchi & Satchi Australia Pty Limited (1st Pl)
Thambiappah Satchithanantham (2nd Pl)
Sanjay Sarma trading as Adidev Enterprises (Def)FILE NUMBER(S): SC 11443/06 COUNSEL: Mr J. M. Patel (Pl's)
Mr S. Stojanovic (Sol.)(Def)SOLICITORS: Stojanovic Solicitors (Def) LOWER COURT JURISDICTION: Local Court LOWER COURT FILE NUMBER(S): 1160/04; 3780/04 LOWER COURT JUDICIAL OFFICER : Brown LCM LOWER COURT DATE OF DECISION: 02/03/2006
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ASSOCIATE JUSTICE MALPASS
27 JUNE 2007
JUDGMENT11443/06 Satchi & Satchi Australia Pty Limited & 2 Ors v Sanjay Sarma t/as Adidev Enterprises
1 HIS HONOUR : These proceedings arise out of earlier proceedings in the Local Court (a re-hearing requested by the plaintiffs following an arbitration). On 2 March 2006, in those earlier proceedings, the defendant obtained a judgment in a liquidated sum, following the non-appearance of the plaintiffs and the striking out of their pleadings.
2 On 3 March 2006, the plaintiffs filed a Notice of Motion seeking the setting aside of that judgment. The Notice of Motion was dealt with in Chambers on the papers. It was not given a hearing date and it appears that it was not supported by any evidence. It was dismissed.
3 On 29 March 2006, the plaintiffs filed a Summons in this Court. It seeks to have the judgment set aside by way of appeal. It sets out a number of grounds of appeal. It does not seek to have the order dismissing the Notice of Motion set aside. Largely, the grounds do not address the decision that is the subject of appeal. All of them suffer from a lack of specificity (inter alia, the alleged error in point of law is not made plain). Prima facie, they convey the impression that the appeal is misconceived and hopeless.
4 At the outset I should express my view that these proceedings are misconceived, inter alia, because the appropriate relief` has not been sought in respect of the order dismissing the Notice of Motion. There is also a deficiency in the material before this Court as to what happened (inter alia, what material was before the magistrate).
5 The proceedings came before the Court on 18 May 2006. The second plaintiff presented himself as appearing for all plaintiffs. The defendant appeared in person. Directions were given and the matter was adjourned to 15 June 2006.
6 On 15 June 2006, there was no appearance on behalf of the plaintiffs. An order was made striking the Summons out of the list.
7 On 4 July 2006, the plaintiffs filed a Notice of Motion. It sought the setting aside of the order made on 15 June 2006.
8 The Notice of Motion was heard by Assistant Registrar Howe on 1 November 2006. He delivered his decision and written reasons for that decision (the reasons). He exercised the discretionary power of the Court. He dismissed the Notice of Motion and made an order for costs.
9 On 27 November 2006, the plaintiffs filed a further Notice of Motion. It seeks, inter alia, an order that what was done by Assistant Registrar Howe on 1 November 2006 be set aside.
10 This Notice of Motion was allocated a hearing date to take place on 21 June 2007. The basis upon which the relief was sought was unclear. In the circumstances of this case, the only available challenge to a decision of a Registrar is by way of review. If that was intended, a jurisdictional question is raised (because the matter was referred by me to the Registrar for hearing). I shall return to that matter in due course.
11 The Notice of Motion identifies ten unhelpful grounds of appeal. I shall return to this matter in due course.
12 Mr Patel appeared on behalf of the plaintiffs and Mr Stojanovic appeared on behalf of the defendant. The parties relied on written submissions, supplemented by oral argument. The parties enjoined in an application that the hearing of the Notice of Motion be treated also as a hearing of the appeal (either I should allow the appeal or dismiss the Summons). There was a consensus that the utility of the proceedings was the crucial issue.
13 I have examined the reasons. They set forth the history of what has taken place between the parties. The Registrar had regard to, inter alia, the lack of prospects of success of the proposed appeal and the second defendants past failure to attend Court for hearings. I have also had regard to the evidence and submissions made before the Registrar and in this application.
14 In substance, the Registrar was dealing with an application to restore the Summons to the list. He correctly saw that the making of such an order had no utility.
15 Largely, the grounds of appeal in this application border on the meaningless. In my view, no ground of appeal has been made out and I see no error in what was done by the Registrar. Even if a different view were to be taken on this matter, I consider that the Notice of Motion should be dismissed in any event because the proceedings have no utility.
16 Before proceeding further, I should make some general observations. Whilst the conduct of the plaintiffs’ case has largely been in the hands of one of them, from time to time, they have had the assistance of Counsel. Despite that assistance, what has been put before the Court could be described as a “mess”. The plaintiffs have put a bulk of material before it (one of them has sworn a number of affidavits). Generally speaking, the affidavits are lengthy and have many annexures. Despite the bulk of the material, there is a lack of evidence in respect of crucial matters.
17 I have earlier mentioned the deficiencies in the Summons. During the course of the hearing, Mr Patel sought leave to amend it. The proposed amendments went both to relief sought and grounds of appeal. For a variety of reasons, this application was rejected. There was an express abandonment of all grounds of appeal and an attempt to rely on what may be found elsewhere in the bulk of documentation. Apart from general reference to denial of natural justice, there was a lack of specificity in what was proposed as grounds of appeal.
18 The claim made in the Local Court was founded on the dishonouring of two cheques. The transcript suggests that there may have been a number of documents purporting to be defences filed by the plaintiffs. What the content thereof may have been is unknown (the relevant material was not placed before this Court). The transcript reveals that the Magistrate had read the material and took the view that much of what appeared within it was either irrelevant or prejudicial. It appears that the documents were struck out not only because of the non-appearance of the plaintiffs, but also because of their pleading deficiencies. There is no need to dwell on the question of the striking out of the documents, because it was immaterial to the result reached by the Magistrate.
19 At the time that this was done, the proceedings were part heard. The evidence that had been adduced comprised a statement from the defendant. The only issue before the Magistrate was that of the dishonoured cheques and this was the issue that he came to address in giving judgment. After standing the hearing down for a short period, (there was no appearance for the plaintiffs until after 11.00am) the Magistrate then proceeded to dispose of the proceedings in the continued absence of the plaintiffs.
20 The concept of denial of natural justice is a flexible one. What will constitute such a denial will vary from case to case. The onus rests with the party that propounds that there has been a denial.
21 Usually, the question to be considered is whether or not that party has been given a reasonable opportunity to present his or her case (that seems to be the position in these proceedings). In the circumstances of this case, assuming that it was open to the plaintiffs to put such a case, I am not satisfied that the relevant onus has been discharged.
22 As already mentioned, the Summons does not seek an order setting aside what was done on 3 March 2006. Putting that problem aside, there is a lack of evidence before the Court to discharge the onus that there was a denial of natural justice in relation to it.
23 I have come to the view that the case for the plaintiffs (be it that thrown up by their process or what appears elsewhere in their material) is devoid of merit and that the appeal cannot succeed. Accordingly, I consider that the Summons should be dismissed.
24 Because of what has been said in preceding paragraphs, it is unnecessary to address the jurisdictional question. It is best left for re-visitation in the future.
25 The Notice of Motion is dismissed. The Summons is dismissed. The plaintiffs are to pay the costs of the proceedings.
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