3 Sons Investments Pty Ltd v Blair’s Developments Pty Ltd [2021] NSWSC 349

Supreme Court New South Wales

Medium Neutral Citation: 3 Sons Investments Pty Ltd v Blair's Developments Pty Ltd [2021] NSWSC 349 Hearing dates: 01 April 2021 Date of orders: 09 April 2021 Decision date: 09 April 2021 Jurisdiction: Common Law Before: Cavanagh J Decision: (1) The summons is dismissed. (2) The plaintiff is to pay the defendant's costs. Catchwords: APPEALS – Procedural fairness – Summary judgment Legislation Cited: Local Court Act 2007 (NSW) Supreme Court Act 1970 (NSW) Cases Cited: 3 Sons Investments Pty Ltd v Blair's Developments Pty Ltd [2020] NSWSC 1869 House v The King (1936) 55 CLR 499; [1936] HCA 40 Snowy Monaro Regional Council v Cmunt (No. 3) [2018] NSWLEC 175 Category: Principal judgment Parties: 3 Sons Investments Pty Ltd (First Plaintiff) Max Burt (Second Plaintiff) Jaycene Irwin (Third Plaintiff) Blair's Developments Pty Ltd (Defendant) Representation: Counsel: W R Chan (Defendant)

Solicitors: Second Plaintiff (Self-represented) Priest Legal (Defendant) File Number(s): 2020/346508 Publication restriction: None

Judgment 1. This is the judgment in respect of an appeal by the plaintiffs from a decision of a Local Court Magistrate to strike out their defences and enter judgment against them in respect of a money claim. 2. The second plaintiff, Max Burt, appears in person and purports to represent the two other plaintiffs, being his company and his wife, Jaycene Irwin (for ease of reference, I will simply call Mr Burt the "plaintiff" in this judgment). 3. At the commencement of the hearing, there were two defendants being Blair's Developments Pty Ltd and the Local Court of New South Wales. After some discussion with the plaintiff, he agreed to discontinue the proceedings against the Local Court of New South Wales and I made orders to that effect. I will thus refer to Blair's Developments Pty Ltd as the "defendant". 4. The plaintiff seeks leave to appeal from the decisions of the Local Court of New South Wales made on 12 and 23 November 2020. 5. The appeal is made pursuant to ss 39 and 40 of the Local Court Act 2007 (NSW) ("LCA"). The appeal is by way of rehearing (s 75A(5) of the Supreme Court Act 1970 (NSW)). 6. An appeal only lies on a point of law (s 39 LCA), otherwise it is necessary for the plaintiff to seek leave (s 40(1), 2(a) and 2(c) LCA). 7. Both parties provided written and oral submissions. I admitted into evidence the contents of a one volume Court Book, albeit that Court Book contained an affidavit of the plaintiff sworn 6 December 2020 which must be considered fresh evidence. 8. Having reviewed the matter and heard the submissions of Mr Chan, I granted leave to the plaintiff to rely on that affidavit. In reality, its contents are part submission and part summary of facts not in dispute. 9. The defendant withdrew reliance on an affidavit from the solicitor for the defendant affirmed on 16 December 2020. It was only relevant to the earlier stay application which was determined by Hamill J (as Duty Judge) on 17 December 2020 [1] . 10. The defendant did not oppose the plaintiff speaking on behalf of all three plaintiffs. 11. There is some lack of precision in the summons as to the error of law on which the plaintiff relies. 12. Having regard to the plaintiff's submissions, both written and oral, I understand that the plaintiff seeks to appeal from the decision to strike out the defence and enter judgment, in circumstances in which her Honour should have granted an adjournment to allow more time for the plaintiff to replead. 13. Indeed, it is apparent from a review of the transcript before the Magistrate that Counsel retained by the plaintiff in the Court below accepted that the defence was deficient and that there would need to be a repleading. However, he sought an adjournment to do so. 14. The plaintiff submits that he was denied procedural fairness and that the learned Magistrate gave weight to irrelevant considerations. As he submitted in perhaps a uniquely Australian way, he was not given a fair go.