Simpson and anor trading as Almar Pioneer Interiors v Griffiths

[2018] NSWSC 1010

Supreme Court

New South Wales

Medium Neutral Citation:	Simpson & anor trading as Almar Pioneer Interiors v Griffiths [2018] NSWSC 1010
Hearing dates:	28 June 2018
Decision date:	28 June 2018
Jurisdiction:	Common Law
Before:	R A Hulme J
Decision:	Pursuant to s 66 of the Supreme Court Act 1970 (NSW), the hearing of the merits of the plaintiffs' claim in proceedings identified as Margaret Anne Griffiths against Mark Allan Simpson and Rhoda Mary Simpson both trading as Almar Pioneer Interiors (ref 2017/00097003) listed in the Local Court at Hornsby on 29 June 2018 is stayed until further order of this Court. Costs reserved.
Catchwords:	CIVIL PROCEDURE – jurisdiction – where building claim brought in Local Court – where Magistrate refused plaintiffs’ application to transfer proceedings to Civil and Administrative Tribunal – plaintiffs sought interlocutory orders in Supreme Court – no appearance by defendant – matter to be heard in Local Court day after interlocutory hearing – Home Building Act 1989 (NSW) s 48L requires Magistrate to transfer proceedings on application to the Civil and Administrative Tribunal – plaintiff has an arguable case as to error – Local Court proceedings stayed until further orders
Legislation Cited:	Building and Construction Industry Security of Payment Act 1999 ss 15, 16, 25 Civil and Administrative Tribunal Act 2013 Sch 4 Home Building Act 1989 (NSW) s 48L Supreme Court Act 1970 (NSW) s 66
Cases Cited:	May v Christodoulou (2011) 80 NSWLR 462
Category:	Principal judgment
Parties:	Mark Allan Simpson (First Plaintiff) Rhoda Mary Simpson (Second Plaintiff) Margaret Anne Griffiths (Defendant)
Representation:	Counsel: Ms V Heath (Plaintiffs)   Solicitors: G J Harris & Co
File Number(s):	2018/198520
Decision under appeal	Court or tribunal: Local Court of New South Wales Jurisdiction: General Claims Civil Division Date of Decision: 22 June 2018 Before: Reiss LCM File Number(s): 2017/97003

Judgment

1. HIS HONOUR: These proceedings arise out of a dispute between Ms Margaret Griffiths on the one hand and the two plaintiffs who trade under the name Almar Pioneer Interiors on the other.

2. The matter concerns the plaintiffs carrying out some bathroom renovation work at the home of Ms Griffiths. Ms Griffiths later complained that there was some shortcoming in the manner in which the work was carried out.

3. Ms Griffiths instituted a claim in the General Division of the Local Court of New South Wales at Hornsby by filing a statement of claim on 30 March 2017. The plaintiffs have filed a defence. The matter has been set down for hearing in the Local Court tomorrow 29 June 2018 with an estimated hearing time of three hours.

4. Last week the plaintiffs made an application that the proceedings be transferred from the Local Court to the New South Wales Civil and Administrative Tribunal ("the Tribunal") pursuant to s 48L of the Home Building Act 1989 (NSW):

48L Tribunal to be chiefly responsible for resolving building claims

(1) This section applies if a person starts any proceedings in or before any court in respect of a building claim and the building claim is one that could be heard by the Tribunal under this Division.

(2) If a defendant in proceedings to which this section applies makes an application for the proceedings to be transferred, the proceedings must be transferred to the Tribunal in accordance with the regulations and are to continue before the Tribunal as if they had been instituted there.

(3) This section does not apply to matters arising under sections 15, 16 or 25 of the Building and Construction Industry Security of Payment Act 1999.

(4) This section has effect despite clause 6 (Transfer of proceedings to courts or to other tribunals) of Schedule 4 to the Civil and Administrative Tribunal Act 2013.

5. On its face, that provision is in mandatory terms such that if a defendant in proceedings involving a building claim applies for the proceedings to be transferred to the Tribunal, such transfer must be made by the Court in which the proceedings were originally instituted.

6. There is some jurisprudence in relation to the construction of that provision by way of May v Christodoulou (2011) 80 NSWLR 462 (see, particularly at [130]-[131]).

7. The magistrate in the Local Court refused the application. No transcript of the hearing of the application or the reasons for judgment is presently available.

8. Yesterday, the plaintiffs instituted proceedings in this Court which had a two-fold purpose, in broad terms. The first was to prevent the hearing in the Local Court proceeding before this Court has dealt with the second aspect of the summons. The second aspect of it is in the nature of an appeal challenging the decision of the magistrate refusing the application to transfer proceedings under s 48L of the Home Building Act.

9. There was no appearance by or on behalf of the defendant when the matter was first called at about 10.30am today. It is now about 2.30pm and there is still no appearance.

10. Ms Griffiths' legal representatives have been apprised by way of telephone messages and emails in relation to the institution of proceedings in this Court and, ultimately, I am satisfied, as to the listing of the matter before me today.

11. Read in the course of the application this afternoon were affidavits of Walter John Aiken and Gregory John Harris, both of 28 June 2018, and there has also been handed up a schedule of communications between the representatives of the plaintiffs and the defendant. In short, I am satisfied that the plaintiffs have done all that is reasonably possible to apprise the defendant of the listing of the matter before me today.

12. The communication with the defendant's solicitor culminated in a conversation by telephone between the plaintiffs' solicitor and Mr Julius King of King Law, solicitors, at Bathurst. Mr King indicated that he was occupied throughout today with a more pressing commitment and that counsel who had some involvement in the matter is also unavailable. The upshot is that it is simply not possible for an appearance to be made today by either of them. Why it has not been possible for an agent to appear is not apparent. I do, however, note the short notice.

13. There are competing considerations. I have not heard from the defendant or her representatives as to their attitude to the orders sought. There is the fact that a hearing is scheduled in the Local Court tomorrow. It is a civil dispute. It will potentially involve some cost to the parties but, in the scheme of things, not a terribly great cost. Staying the hearing will result in inconvenience to the Local Court as it has arranged its listings to accommodate the three hours being made available for this matter tomorrow. However, on the face of it, there appears to be an arguable case to be advanced by the plaintiff as to error in the magistrate's refusal of the s 48L application last week. If the plaintiffs are correct as to what the correct outcome of that application should have been, the Local Court will not have jurisdiction to deal with the matter at all but will be required to transfer the proceedings to the Tribunal.

14. In the circumstances I have come to the view that it is appropriate to make an order preventing the hearing in the Local Court proceeding tomorrow.

Orders

15. Pursuant to s 66 of the Supreme Court Act 1970 (NSW), the hearing of the merits of the plaintiffs' claim in proceedings identified as Margaret Anne Griffiths against Mark Allan Simpson and Rhoda Mary Simpson both trading as Almar Pioneer Interiors (ref 2017/00097003) listed in the Local Court at Hornsby on 29 June 2018 is stayed until further order of this Court.

16. (For the sake of clarity, I indicate that the intention of the Court in making that order is that the hearing scheduled for tomorrow must not proceed but that the matter be adjourned pending further order of this Court.)

17. Costs are reserved.

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Decision last updated: 29 June 2018