Visual Building Construction Pty Ltd v Chaloner

[2020] NSWSC 1371

Supreme Court

New South Wales

Medium Neutral Citation:

Visual Building Construction Pty Ltd v Chaloner [2020] NSWSC 1371

Hearing dates:

7 October 2020

Date of orders:

7 October 2020

Decision date:

07 October 2020

Jurisdiction:

Common Law

Before:

Cavanagh J

Decision:

(1)   The Plaintiff’s Notice of Motion filed on 31 January 2020 is dismissed.

Catchwords:

APPEALS — Jurisdiction of appellate court — Supreme Court — Application to Supreme Court for leave to appeal decision of Supreme Court

APPEALS — Procedure — Stay pending appeal

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW), s 83.

Category:

Principal judgment

Parties:

Visual Building Construction Pty Limited (Plaintiff)
Lance Chaloner (First Respondent)
Sandra Jean Chaloner (Second Respondent)

Representation:

Plaintiff (self-represented)
First and Second Respondents (self-represented)

File Number(s):

2018/272955

Publication restriction:

Nil

REVISED EX TEMPORE Judgment

1. This matter comes before the Court by way of a notice of motion filed by the plaintiff, Visual Building Construction Pty Ltd, on 31 January 2020. The defendants/respondents to the motion are Lance Chaloner and Sandra Jean Chaloner.

2. Mr Shehata, who is a director of the plaintiff company, appears by telephone today. Mr Chaloner, who is the first respondent to the motion, appears by AVL. His wife, Sandra Jean Chaloner, did not appear but Mr Chaloner was granted leave to make submissions on behalf of both respondents.

3. As set out in the motion, the plaintiff seeks a number of orders, including:

1. The enforcement of the judgment entered on 11 December 2019 be stayed on an ex parte basis pending the hearing of the motion.

2. To the extent that an extension of time is required, that it be granted.

3. To the extent that leave to appeal is required, that leave be granted.

4. Appeal allowed.

5. Respondents pay the applicant’s costs.

4. In support of this application, the plaintiff relies on an affidavit of Yousef Shehata dated 31 January 2020.

Background to the application

5. This matter has a long history. In reality, the plaintiff is today seeking to appeal the decision of Fagan J of 11 December 2019. The background to that decision is set out in the decision of his Honour dated 11 December 2019. I will summarise the background briefly.

6. Mr and Mrs Chaloner pursued proceedings in the Civil and Administrative Tribunal (“the Tribunal”) against the plaintiff seeking orders in respect of defective building work. The matter was heard by a Tribunal Member and the Member made orders to the effect that the plaintiff pay to Mr and Mrs Chaloner the sum of $23,690. Other parts of Mr and Mrs Chaloner’s claim were attributed to a Mr Alexander who was the former owner of the property where the building works were undertaken.

7. The plaintiff then pursued an internal appeal to the Appeal Panel of the Tribunal (“the Appeal Panel”). As identified by Fagan J, there were certain difficulties with that appeal. Ultimately, the Appeal Panel dismissed the appeal. It is not necessary to set out the grounds on which the appeal was dismissed as they are summarised in the judgment of Fagan J.

8. The plaintiff then initially filed a notice of appeal in the Court of Appeal, which was incompetent. It subsequently filed a summons in this court on 30 July 2019, in effect, seeking to appeal from the decision of the Appeal Panel.

9. After some delay, that appeal was heard by Fagan J. His Honour dismissed the appeal, thereby dismissing the summons with costs. In essence, his Honour was not satisfied that the plaintiff had shown any error of law and it was necessary to demonstrate an error of law, having regard to s 83 of the Civil and Administrative Tribunal Act 2013 (NSW).

10. Subsequent to the dismissal of the summons, the plaintiff filed the motion which comes before the Court today. Although the motion was filed on 31 January 2020, there has been a long delay in the matter coming on for hearing.

11. It is apparent from my review of the file that the delay has been caused by the plaintiff. As identified by the Registrar in her email to both Mr Shehata and Mr Chaloner, the matter came before the Court on a number of occasions, in particular, 3 March 2020 and 17 March 2020. Mr Chaloner appeared on 17 March 2020 but the plaintiff did not appear on either of those dates. Further orders were made to enable the motion to progress. The parties have not complied with those orders in terms of evidence and submissions. I should say that the obligation on the defendants would only have arisen on receipt of the plaintiff’s evidence and submissions.

12. When the matter was called on today there was no appearance by the plaintiff. I asked my associate to contact Mr Shehata. When contacted he offered no real explanation as to his failure to appear. I stood the matter down for an hour to enable him to arrange to either appear through the AVL or by telephone, indicating to him that I would be determining the matter at 10.30am. He dialled in and, as I said, has appeared by telephone.

The plaintiff’s submissions

13. The essential submission made on behalf of the plaintiff is that Fagan J erred in that the plaintiff should have been given an opportunity to obtain representation by solicitors and barristers. Mr Shehata says that he has spoken to lawyers who have told him that he had a right to be legally represented at the hearing and that, as I understand it, he now wants to exercise that right. I am not sure what he means as the plaintiff was legally represented at the hearing before Fagan J.

14. Further, he says that he needs more time to obtain documents from the Tribunal for the purposes of his appeal.

15. Mr Shehata appears to be proceeding on the assumption that this court might both stay earlier orders and then set aside the decision of Fagan J.

The defendant's submissions

16. In response, Mr Chaloner pointed out on behalf of the respondents that this matter has been going on for a number of years, that all attempts by him to resolve the matter with the plaintiff have been unsuccessful, that there has been considerable delay, and that the plaintiff simply refuses to deal reasonably with the matter and honour any obligations as found by the Tribunal.

Determination

17. The plaintiff's application is misconceived. The plaintiff has not identified any basis on which I could or should make the orders which it seeks in the notice of motion.

18. In effect, the plaintiff is asking me to stay the orders of Fagan J and then to grant leave to appeal and hear the appeal. I have no power to do so in the sense that the plaintiff's application to the Supreme Court for leave to appeal from the decision of the Supreme Court is misconceived.

19. Further, there is nothing in the orders made by Fagan J which could possibly lead to a stay of execution. His Honour dismissed the summons.

20. The plaintiff's appeal from the Appeal Panel was unsuccessful, just as the plaintiff's appeal from the single Member of the Tribunal to the Appeal Panel was unsuccessful.

21. Further, the plaintiff has not identified any basis on which its appeal from the decision of Fagan J could be successful.

22. There being no basis on which the plaintiff can or could succeed on its motion, the plaintiff’s notice of motion filed 31 January 2020 is dismissed.

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Decision last updated: 09 October 2020