Sattar v Boral Constructions Materials Group Limited - [2018] NSWSC 196

Supreme Court

New South Wales

Medium Neutral Citation: Sattar v Boral Constructions Materials Group Limited [2018] NSWSC 196
Hearing dates: 15 February 2018
Date of orders: 28 February 2018
Decision date: 28 February 2018
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
The Court orders that:

(1) The amended summons filed 9 October 2017 seeking to appeal the decision of his Honour Curran LCM dated 11 August 2018 is dismissed.
(2) The plaintiff is to pay the defendants’ costs of the proceedings on an ordinary basis.
Catchwords: PROCEDURE – whether the plaintiff’s amended summons ought to be dismissed on grounds of incompetency – whether amended summons and proceedings ought to be dismissed pursuant to UCPR 13.4 – whether further opportunity to replead summons would allow for the identification of any arguable points of law or any points of mixed law and fact – leave to replead summons refused – amended summons dismissed
Legislation Cited: Local Court Act 2007 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: B & L Linings Pty Limited & Anor v Chief Commissioner of State Revenue (2008) 74 NSWLR 481; [2008] NSWCA 187
Sayed v Deng [2012] NSWSC 851
Swain v Waverley Municipal Council [2005] HCA 4; (2005) 220 CLR 517
Category: Procedural and other rulings
Parties: Qamar Jahan Sattar (Plaintiff)
Boral Construction Materials Group Limited (First Defendant)
Boral Resources (NSW) Pty Ltd (Second Defendant)
Representation:
Counsel:
M Condon SC with L Fermanis (Defendants)
Solicitors:
Self Represented (Plaintiff)
Holman Webb Lawyers (Defendants)

File Number(s): 2017/272474
Publication restriction: Nil

Judgment

HER HONOUR: By notice of motion filed 23 October 2017, the defendants seek orders that firstly, pursuant to Rule 50.16A of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), the amended summons filed 9 October 2017 be dismissed as being incompetent; secondly, in the alternative, pursuant to UCPR 13.4 the amended summons and the proceedings be dismissed; thirdly, in the alternative to orders 1 and 2, the notice to produce served by the plaintiff dated 13 October 2017 be set aside. The defendants are also seeking an order for security for costs that will need to be determined, should the amended appeal not be summarily dismissed.
The plaintiff is Qamar Jahan Sattar. The first defendant is Boral Construction Materials Group Limited. The second defendant is Boral Resources (NSW) Pty Ltd. For convenience, I will refer to the plaintiff as Ms Sattar and the first and second defendant collectively as Boral except where otherwise stated.
The plaintiff relied upon her affidavits dated 7 September 2017 and 7 October 2017 and five court books. The defendants relied upon two affidavits of Andrew Tanna filed 23 October 2017 and 15 February 2018 and two court books. The plaintiff appeared and was not legally represented. Mr Condon SC appeared for the defendants.

Background

Ms Sattar was involved in developing a building site at Punchbowl. On 5 March 2014, she was issued with an owner/builder’s permit by the Department of Fair Trading for the work to be performed…

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 Sattar v Boral Constructions Materials Group Limited

Details

AGLC: Sattar v Boral Constructions Materials Group Limited [2018] NSWSC 196
Case: [2018] NSWSC 196
Decision Date: 28 February 2018

CaseChat Overview and Summary

In the Federal Court of Australia, the plaintiff, Mr Sattar, initiated proceedings against Boral Constructions Materials Group Limited, contesting a matter concerning personal injuries sustained due to an alleged negligent act. The plaintiff sought to amend his initial summons through an amended summons, which the defendant argued was incompetent and should be dismissed. The court was tasked with determining whether the amended summons should be dismissed on grounds of incompetency and if the proceedings should be dismissed under UCPR 13.4, which pertains to the dismissal of proceedings for want of prosecution or other reasons. Additionally, the court had to consider whether providing a further opportunity to replead the summons would enable the plaintiff to identify any arguable points of law or points of mixed law and fact.

The court examined the amended summons and found it to be incompetent, lacking sufficient detail to establish a cause of action. The plaintiff's attempt to articulate a claim against the defendant did not provide the court with a clear understanding of the legal basis for the claim or the factual circumstances leading to the alleged injuries. The court found that the plaintiff had not identified any arguable points of law or points of mixed law and fact that would warrant a repleading of the summons. The plaintiff's submissions did not sufficiently address the deficiencies identified in the initial summons, and the court concluded that further opportunities to replead would not result in a viable claim.

The court dismissed the plaintiff's amended summons and the proceedings under UCPR 13.4. The plaintiff was denied leave to replead the summons, and the proceedings were dismissed due to the incompetency of the amended summons and the lack of any arguable points of law or mixed points of law and fact. The court's decision underscored the importance of a summons being both legally and factually sufficient to establish a viable claim, and it highlighted that the plaintiff's inability to address the deficiencies in the amended summons warranted the dismissal of the proceedings.

Orders