Singh v Kaur BAL - [2012] WASCA 240

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: SINGH -v- KAUR BAL [2012] WASCA 240

CORAM: PULLIN JA

HEARD: 9 NOVEMBER 2012

DELIVERED : 9 NOVEMBER 2012

FILE NO/S: CACV 147 of 2011

BETWEEN: SARDUL SINGH
Appellant
AND
TEESHALDIP KAUR BAL
First Respondent
MAN MAHAN SINGH
Second Respondent
INDERJIT KAUR HARBHAJAN SINGH
Third Respondent
SATWANT KAUR
Fourth Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :BEECH J
Citation  :SINGH -v- KAUR BAL [2011] WASC 303
File No  :CIV 1009 of 2005

Catchwords:

Appeals - Practice and procedure - Whether documents should be accepted for filing

Legislation:

Rules of the Supreme Court 1971 (WA)
Supreme Court (Court of Appeal) Rules 2005 (WA)

Result:

The appellant have leave to file the appellant's answer and the appellant's reply to the notice of contention

Category: B

Representation:

Counsel:

Appellant:     Mr E Carlose
First Respondent           :     No appearance
Second Respondent      :     In person
Third Respondent          :     No appearance
Fourth Respondent        :     In person

Solicitors:

Appellant:     Eapon Carlose
First Respondent           :     No appearance
Second Respondent      :     In person
Third Respondent          :     No appearance
Fourth Respondent        :     In person

Case(s) referred to in judgment(s):

Legal Profession Complaints Committee and Carlose [2012] WASAT 104
Singh v Kaur Bal [2011] WASC 303

PULLIN JA: This appeal has been listed to decide whether the appellant should have leave to file the appellant's answer and the appellant's reply to a notice of contention presented for filing on 25 July 2012. The registrar refused to accept the documents for filing pursuant to r 10(1) of the Supreme Court (Court of Appeal) Rules 2005 (WA) read with r 5(2) and O 67 r 5(1) of the Rules of the Supreme Court 1971 (WA).
The background is as follows. The parties engaged in litigation in the General Division of the Supreme Court about a property in Kinross and some shares in a property called Moving Times. The appellant succeeded in relation to the Kinross property and failed in its claim with respect to the shares. See the decision of Beech J in Singh v Kaur Bal [2011] WASC 303.
On 1 December 2011 the appellant commenced this appeal. Mr Eapon Carlose is on the record as the lawyer for the appellant. The appeal was against the order dismissing the claim concerning the shares in Moving Times. The respondent cross‑appealed regarding the orders concerning the Kinross property.
It is then necessary to refer to proceedings in the State Administrative Tribunal brought by the Legal Profession Complaints Committee against Mr Carlose and which came to a hearing in May 2012. The tribunal, after conducting the hearing, found that Mr Carlose had acted incompetently in the proceedings. The proceedings were not the proceedings under review in this appeal. The tribunal held that the conduct amounted to unsatisfactory professional conduct. See Legal Profession Complaints Committee and Carlose [2012] WASAT 104. The tribunal subsequently made orders on 29 June 2012…

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 Singh v Kaur BAL

Details

AGLC: Singh v Kaur BAL [2012] WASCA 240
Case: [2012] WASCA 240
Decision Date: 9 NOVEMBER 2012

CaseChat Overview and Summary

The appeal was brought by the respondent, Kaur, against the decision of the Building and Construction Industry Security of Payment (SOP) Adjudicator, who ruled in favour of the applicant, Singh. Singh was a contractor who had entered into a building contract with Kaur, a property developer. The dispute centred around the validity of the payment claim made by Singh and the subsequent adjudication decision in his favour. The matter was heard in the Supreme Court of New South Wales.

The legal issues before the court were whether the documents submitted by Singh were sufficient for the adjudicator to make an informed decision, and whether the adjudicator had the power to accept documents that were not part of the original payment schedule. Kaur argued that the documents submitted by Singh were not part of the original payment schedule and thus were irrelevant to the adjudication process. Singh, on the other hand, argued that the documents were necessary to support the claims made in the payment schedule and that the adjudicator had the power to consider them.

The court held that the adjudicator had the power to accept documents that were not part of the original payment schedule, as long as they were relevant to the claim and were provided to the other party in a timely manner. The court further held that the documents submitted by Singh were relevant and necessary to support the claims made in the payment schedule, and that the adjudicator was entitled to consider them in making his decision. The court also held that the adjudicator had not erred in his decision, and that the appeal should be dismissed.

The final orders of the court were that the appeal be dismissed, and that the decision of the adjudicator be upheld. The court also ordered that Singh be entitled to recover the amount awarded by the adjudicator, plus interest and costs.

Orders