OSTIMA & ANOR v SARKIS & ANOR [1999] NSWSC 1006

New South Wales Supreme Court CITATION : OSTIMA & ANOR v SARKIS & ANOR [1999] NSWSC 1006 CURRENT JURISDICTION : Common Law Administrative Law List FILE NUMBER(S) : 30021/1999 HEARING DATE(S) : 2 September 1999 JUDGMENT DATE : 1 October 1999

Ostima Pty Ltd (First Plaintiff) Charles Mehanna (Second Plaintiff) PARTIES : v Youseff Sarkis (First Defendant) Consumer Claims Tribunal (Second Defendant)

JUDGMENT OF : Master Malpass

LOWER COURT JURISDICTION : Consumer Claims Tribunal LOWER COURT FILE NUMBER(S) : BHU98/282 LOWER COURT JUDICIAL OFFICER : D Baker

MR C Stomo (Plaintiffs) COUNSEL : Mr J Stoljar (First Defendant) N/A (Second Defendant) Edward Kassis & Associates (Plaintiffs) SOLICITORS : Carroll & O'Dea (First Defendant) I V Knight - Crown Solicitor - Submitting appearance (Second Defendant) CATCHWORDS : Consumer claim; alleged denial of natural justice. ACTS CITED : N/A CASES CITED : Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. DECISION : See paragraph 21.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST MASTER MALPASS

FRIDAY 1 OCTOBER 1999

30021/1999 OSTIMA PTY LTD & ANOR v YOUSEFF SARKIS & ANOR JUDGMENT 1 The first plaintiff is a developer. The second plaintiff is a director of the first plaintiff. The first plaintiff was involved in a development of a property known 1 Waitara Parade, Hurstville Grove (the property). 2 In about mid August 1998, a contract was made with the first defendant to perform cement rendering work. Some work was done by the first defendant. There was dispute between the parties. There was a purported termination of the contract. 3 The first defendant brought a claim in the Consumer Claims Tribunal (the second defendant in these proceedings). Both plaintiffs became respondents (there was a question as to whether the contract had been made with the second plaintiff). The claim was for a specific sum of money which fell within the jurisdictional limit of the tribunal. The claim came before a referee (Mr Baker). Following a hearing the referee determined that the first defendant was entitled to the sum of $3,200 (which was a part of the sum claimed by him) on the basis of quantum meruit. Written reasons for the decision have been provided. 4 The plaintiffs now bring proceedings in this Court. The process relied on is an Amended Summons filed on 9 April 1999. The plaintiffs seek to have the determination of the tribunal set aside. Although the Amended Summons raises matters of jurisdiction, the only basis upon which relief is sought is alleged denial of natural justice. 5 The plaintiffs have been represented by counsel. The first defendant has been represented by counsel. The second defendant has filed a submitting appearance. 6 The second plaintiff has sworn two affidavits. He has been cross-examined. The first defendant has sworn an affidavit. He was not cross-examined. The parties have tendered documentation. 7 I should first mention the position that existed prior to the hearing before the referee. On behalf of the plaintiffs, it was being contended that there was a Cross-claim had against the first defendant. By letter dated 9 December 1998, the tribunal was notified that this Cross-claim did not fall within the jurisdiction of the tribunal and had to be heard elsewhere. An adjournment was sought for a period of three months to allow the commencement of proceedings in a higher court. 8 The claim first came before the tribunal on 16 December 1998. It appears that a question of jurisdiction was raised by the second plaintiff on that day. The tribunal was told that there was a claim founded on alleged breach of contract which they wanted to bring in another place. The parties were told that the jurisdiction argument could not be determined until evidence had been heard in relation to the termination of the contract (including evidence in relation to defective work). Thereafter, a hearing commenced and the proceedings became part heard. It appears that the parties proceeded on the basis of the hearing of the first defendant's disputed claim. It seems that the plaintiffs did not make any application for adjournment at the hearing itself. 9 The proceedings came before the tribunal again on 21 January 1999. The contested hearing continued on that day. Again the proceedings were part heard. 10 The proceedings came before the tribunal again on 25 February 1999. The contested hearing continued and concluded on that day. 11 The court has before it tribunal records (Exhibit 1). Although there is dispute as to what took place during the hearing, it seems to be common ground that the total hearing time was in the order of five hours. 12 The plaintiffs raise three areas in which it is said there was a denial of natural justice. Firstly, it was said that the plaintiffs were not given a full opportunity to present their case. Secondly, it was said that the tribunal did not discharge its obligation to identify the issues which were to be the subject of the determination. Thirdly, it was said that the Cross-claim of the plaintiffs may now be in some jeopardy (in support of this contention reference was made to Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589). 13 The onus rests with the plaintiffs to make out their claim for relief. I am not satisfied that this onus has been discharged. I am not satisfied that there is substance to any of the three matters argued. 14 The parties appeared in person before the tribunal. The second plaintiff is a man of considerable commercial experience. His affidavit evidence has been challenged in cross-examination. He has given evidence which is not accurate. In a number of respects, his evidence was not consistent with what appears in the material produced by the tribunal. It was at odds with unchallenged affidavit evidence given by the second defendant. Where there is conflict between his evidence and other material, I do not accept his evidence. 15 The plaintiffs' Cross-claim was not litigated in the hearing before the tribunal (it is referred to in the records as a "proposed claim"). But there was in fact a contested hearing of the first defendant's claim. I am not satisfied that the plaintiffs were in any doubt as to what was going on. It seems to me that they were fully appraised of the fact that the tribunal was engaged in a process of adjudicating on the first defendant's claim in the light of the defences advanced and litigated by them. 16 The reasons significantly conclude with a reference to inter alia three matters. There is a finding that the complainant was entitled to be paid on the basis of quantum meruit (the quantification had been earlier determined). It was said that it followed that there was jurisdiction to hear the matters in dispute. There was a statement that "Because of the way the matter was heard there are no further matters to be determined". 17 It has been said that the plaintiffs inter alia wanted to call more witnesses, ask more questions and put further arguments. I have had regard to these contentious complaints in the context of other evidence and the legislation. 18 I am not satisfied that the tribunal did not give the plaintiffs a reasonable opportunity, in the circumstances of this case, to present their Defence to the first defendant's claim. On two of the three hearing days, the plaintiffs' expert Mr Dessoix was present. He had prepared a report (dealing with the quality of the work) which was placed before the tribunal. The plaintiffs presented a video which was shown together with commentary from Mr Dessoix. The second plaintiff cross-examined both the first defendant and Mr Worthington (the first defendant's expert). The plaintiffs placed other documentation before the court (including statutory declarations and letters). The tribunal records note the various matters argued by the plaintiffs by way of Defence to the claim. The records are consistent with a state of affairs where they had a reasonable opportunity to present the various aspects of the Defence and in substance did so. The material records that the plaintiffs propounded a case to the effect that the first defendant should not recover anything for the work done. 19 It must be borne in mind that the legislation provides an informal process for inexpensive and expeditious disposition of disputes concerning relatively small claims (under $25,000). It was not intended to provide a forum of perfection. 20 The formulation of the third area of complaint was somewhat vague. The Cross-claim itself has not been reduced to any precise form. To date, it appears that it has not been pursued (it remains a proposed claim) in any forum. The matter of its prosecution has been in the hands of the plaintiffs. The matter of the application of what arises from what was said in the Anshun case was not the subject of much argument. In the light of what has been put on behalf of the plaintiffs, I am not satisfied that there is any impediment to the plaintiffs pursuing this claim should they wish to do so and I am not satisfied that this area of complaint gives rise to any denial of natural justice. 21 In my view the plaintiffs' case fails. The Summons is dismissed. The plaintiffs are to pay the costs of the proceedings. The exhibits may be returned. **********