Supreme Court New South Wales Medium Neutral Citation: 3 Sons Investments Pty Ltd v Blair's Developments Pty Ltd [2020] NSWSC 1869 Hearing dates: 17 December 2020 Date of orders: 17 December 2020 Decision date: 17 December 2020 Jurisdiction: Common Law Before: Hamill J (as Duty Judge) Decision: See [12] and [13]. Catchwords: CIVIL LAW - appeal from Local court to Supreme Court - denial of natural justice - self-represented litigant - interlocutory application - application for stay of judgment pending appeal - application for stay of writ of execution - whether refusal to stay judgment renders nugatory the proposed appeal - Category: Procedural and other rulings Parties: 3 Sons Investment Pty Ltd (First Plaintiff) Max Burt (Second Plaintiff) Jaycene Irwin (Third Plaintiff) Blair Developments Pty Ltd (First Defendant) Local Court of NSW (Second Defendant) Representation: Counsel: W Chan (Defendant) Solicitors: Priest Legal (Defendant) File Number(s): 2020/346508 Publication restriction: Nil EX TEMPORE Judgment (REVISED) 1. Max Burt, 3 Sons Investments Pty Ltd and Jaycene Irwin are plaintiffs who bring an action by summons seeking leave to appeal against Blair's Developments Pty Ltd as the first defendant and the Local Court of New South Wales as the second defendant. 2. The matter was referred to me as Duty Judge this afternoon in relation to certain interlocutory orders sought by the plaintiffs. Those orders are essentially for a stay of the Local Court decision and a stay of an order for writ that was subsequently made based on the judgment of the Local Court. There was also an application for a stay of a costs assessment process which has been commenced by the first defendant. Two affidavits were read. The first was an affidavit of Max Burt (along with some annexures). The second was an affidavit sworn by the first defendant's solicitor, Mr Brigden. 3. Mr Burt appeared for himself and, with my leave, also appeared for the third plaintiff. Mr Chan of counsel appeared for the first defendant. The application for the stay orders was opposed. The summons commencing the proceedings set out some 10 orders that were sought. The relevant orders that were referred to me by the Registrar were: 1. Order 4, seeking a stay of the Local Court decision; 2. Order 5, seeking a stay of the costs assessment process commenced by the defendant; and 3. Order 6, seeking a stay of the order of the writ of levy of property issued on 3 December 2020. 1. The second of those can be disposed of quickly. There is no reason and no balance of convenience in favour of ordering a stay of the costs assessment process. There will be no prejudice to Mr Burt or the other plaintiffs for that process to continue if the defendants choose to advance it. That may ultimately be a waste of their money, but that would be a matter for them. 2. In relation to orders 4 and 6, Mr Burt's main argument was that a failure to stay the Local Court decision at this stage and a failure to stay the order of the writ would render his appeal against the Magistrate's order to be nugatory. The summons at this stage asserts, by way of appeal grounds, that the plaintiffs were denied procedural fairness, that the Magistrate took into account irrelevant considerations and erred in striking out the defendants' defence. The Magistrate also erred in failing to give the plaintiffs the opportunity to replead the defence. There is a further appeal ground to the effect that the Magistrate erred in finding, in the absence of evidence, that the defendants were at risk of defaulting on any order made for monetary amounts. 3. The upshot of all of that is that the plaintiff (in this Court) did not actually have a hearing on the merits before the Local Court. There is some force in Mr Chan's counter-submission to the effect that, during the course of argument, it became clear that Mr Burt acknowledges that there was a $50,000 loan and that only $20,000 has been repaid. On the face of the matter, it also appears that the plaintiffs' ultimate prospects of success are, at least on that perhaps unduly simplistic analysis, fairly small. On the other hand, Mr Burt's affidavit and submissions set out a number of issues in relation to the way the matter was dealt with in the Local Court. 4. At this point it is impossible for me to make any sensible assessment of the assertions made against the Magistrate because at this stage there is no transcript available of what happened. In short, Mr Burt said he was denied the opportunity to be heard because he did not have legal representation and was labouring under some form of cognitive disability. As I say, I am unable to do more than say that, on the strength of what he says, such a case may be arguable. 5. In the course of hearing the submissions, enquiries were made as to the first available hearing dates and there are some dates in March and April next year. I have formed the view that the extent of the prejudice to the defendants in making the orders that Mr Burt seeks is not so great and can be compensated by way of costs and interest if that is the ultimate decision of the Court. 6. Although I have some sympathy for the defendants' position, it is a matter of balancing the various rights of the parties and one of those is the right to have a hearing. It is very difficult for me to judge at this distance just what happened in the Port Macquarie Local Court that causes Mr Burt to assert that he was denied natural justice. 7. Mr Burt tells me, and it seems to be accepted, that he does have some significant equity in real estate in the area of Sancrox. The defendants' solicitor has obtained the lot numbers and identifiers for that property and under force of argument Mr Burt acknowledged that he and his wife (who is the third plaintiff) would be prepared to sign a written undertaking that they not dispose of that property or further encumber it pending the resolution of the current appeal. It is also possible for me to set a fairly strict timetable to ensure that the case is heard expeditiously so that any further delay in the defendant being able to enforce the judgment in the Local Court is minimised. 8. For all of those reasons, I propose to make the orders in prayers 4 and 6 of the summons on conditions. 9. Accordingly, I make the following orders: 1. There is to be a stay of the decision of the Local Court in the matter known as Blair's Development Pty Ltd v 3 Sons Investments Pty Ltd, being case number 2020/00095937. 2. There is to be a stay of the order of writ of levy of property which was issued in those proceedings on 3 December 2020. 3. That stay is conditional upon the first and third plaintiffs providing a signed written undertaking by 5.00pm on Friday, 18 December 2020, that the property known as Lot 1, DP1009991 and Lot 14, DP1073738, will not be disposed of or further encumbered, pending the resolution of the current proceedings. 4. The stay will also be conditional upon the plaintiffs prosecuting the cause of action expeditiously. To that end I make the directions and recommendations below. 5. Costs will be costs in the cause. 6. Each party has liberty to apply. 1. The directions and recommendations I make are these: 1. The parties are to prepare a court book including the pleadings in the Local Court and any notice(s) of motion and affidavits in the Local Court as well as the transcripts of the hearing in the Local Court by Friday, 19 February 2021. 2. The plaintiff(s) is to file written submissions on or before Friday, 5 March 2021. 3. The defendant is to file written submissions on or before Friday, 19 March 2021. 4. The matter is listed for hearing on Thursday, 1 April 2021. 5. A recommendation that the transcript of the Local Court hearing on 3 December 2020 be prepared as a matter of urgency. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 December 2020