BOGHOSSIAN v WARNER & ORS [2000] NSWCA 27

New South Wales Court of Appeal

CITATION : BOGHOSSIAN v WARNER & ORS [2000] NSWCA 27 FILE NUMBER(S) : CA 40863/99 HEARING DATE(S) : 11 October 1999 JUDGMENT DATE : 3 March 2000

PARTIES : PAUL BOGHUS BOGHOSSIAN v PETER GEORGE WARNER & ORS JUDGMENT OF : Mason P at 1; Handley JA at 50; Beazley JA at 51

LOWER COURT JURISDICTION : Supreme Court LOWER COURT ALD 30116/96 FILE NUMBER(S) : LOWER COURT Smart J JUDICIAL OFFICER :

Appellant: M J Cohen COUNSEL : 1st Respondent: C R Blackwell (Sol) 2nd Respondent: No appearance 3rd Respondent: Submitting Appellant: Church & Grace SOLICITORS : 1st Respondent: Cowley Hearne 2nd Respondent: Self represented 3rd Respondent: I V Knight, Crown Solicitor CATCHWORDS : Inferior Courts and Tribunals - Consumer Claims Tribunal - jurisdiction - collateral contract - building dispute - receipt of secret commission by one of two proprietors - natural justice - failure to serve notice with details of claim - party appears and meets case - finding that fully understood position - ND DECISION : Appeal dismissed with costs

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40863/98

MASON P HANDLEY JA BEAZLEY JA

Friday 3 March 2000

Paul Boghus BOGHOSSIAN v Peter George WARNER & ORS

JUDGMENT 1 MASON P: A building dispute about a comparatively small sum of money has got completely out of hand. Much time and cost have been expended and much of that expenditure will be wasted if, as the claimant alleges, the determination of the building disputes tribunal is vitiated for lack of jurisdiction or denial of procedural fairness. The case is troubling because it is clear that the claimant has had a general understanding of the central allegation made against him from as early as late 1995. However, some of the points raised by the claimant are said to be based upon his lack of complete comprehension of English. His first language is Armenian and he requires the assistance of his wife or an official interpreter from time to time with complex matters. But he has lived in Australia for over 30 years and it is clear that he is generally able to understand and be understood in English. Like any litigant he is entitled to due process, no less and no more. 2 Mr Warner and the claimant owned a development site at Meadowbank and they retained Nascon Pty Ltd (Nascon) to construct a duplex there. There was a building dispute and Nascon suspended work. Mr Warner lodged a building claim against Nascon with the Registrar of the Consumer Claims Tribunals. 3 Proceedings before the tribunal eventuated in an order made on 26 July 1996 that the claimant pay Mr Warner $25,000. That order was challenged in the Supreme Court on the bases that it was made (a) without jurisdiction and (b) in circumstances involving a denial of natural justice. Smart J dismissed the summons with costs. 4 The claimant seeks leave to appeal and the hearing of that application has been treated as if it were the hearing of an appeal. The application was filed out of time, but we heard full argument and it is appropriate to deal with the matter on its merits. 5 In this Court the first opponent is Mr Warner, the second opponent is Nascon and the third opponent is the Registrar of the Consumer Claims Tribunals.