BENDANT PTY LIMITED v DON FOX PLANNING PTY LIMITED [2001] NSWSC 1201

New South Wales Supreme Court

CITATION : BENDANT PTY LIMITED v DON FOX PLANNING PTY LIMITED [2001] NSWSC 1201 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 12826/01 HEARING DATE(S) : 26 November 2001 28 November 2001 JUDGMENT DATE : 28 November 2001

Bendant Pty Limited (Plaintiff)

PARTIES : v

Don Fox Planning Pty Limited JUDGMENT OF : Adams J at 1

LOWER COURT Local Court JURISDICTION : LOWER COURT 80517/00 FILE NUMBER(S) : LOWER COURT McDermid LCM JUDICIAL OFFICER :

COUNSEL : R W Tregenza for the Plaintiff J E Armfield for the Defendant SOLICITORS : Carbone & Associates for the Plaintiff Murrays Lawyers for the Defendant LEGISLATION CITED : Local Court Rules DECISION : See paragraphs 21 and 22

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ADAMS J

WEDNESDAY 28 NOVEMBER 2001.

12826/01 - BENDANT PTY LIMITED v DON FOX PLANNING PTY LIMITED

JUDGMENT

1 HIS HONOUR: By statement of liquidated claim Don Fox Planning Pty. Limited (the plaintiff) sued Bendant Pty. Limited (the defendant) for the liquidated sum of $18,185.03, being the balance owed plus legal fees and interest after part-payment of a contract in the sum of $36,311.50. 2 In its defence the defendant alleged that there are a number of agreements with the plaintiff, that in relation to certain specified agreements which had been particularised the defendant had paid the plaintiff in full and that there was no outstanding balance owing. The defendant cross-claimed as to the sufficiency of the work performed under the agreements admitted and in respect of which it was said payment was made. 3 By its notice of grounds of defence to the claims the plaintiff alleged a number of facts, some of which may have raised questions which probably would have needed to be determined on evidence from the persons who negotiated the contract or contracts on the one hand for the plaintiff and on the other for the defendant. It is clear that some evidence would have been necessary to resolve the issues raised in the primary claim. 4 The case was set down for hearing on 8 June 2001 and on that day an application was made for an adjournment based principally upon the material in the affidavit of Italiano Olivieri who, it was not disputed, was responsible for the day-to-day management of the defendant. In that affidavit Mr Olivieri deposed that in respect of the cross-claim expert evidence had been sought and, in the result, an unsatisfactory report had been obtained and a further report was being sought and was not yet completed. That affidavit related to matters which were evidenced only in connection with the cross-claim. 5 When the application for adjournment was made on 8 June 2001 the defendant relied in addition upon a claim that Mr Olivieri could not come to Court because he was ill and supplied in this respect a medical certificate. It is unnecessary to state the terms of that medical certificate; it was clearly inadequate for the purposes for which it was produced. In my opinion the learned Magistrate was correct in rejecting it as providing a proper basis for concluding that Mr Olivieri was indeed too ill to attend the hearing. He also rejected the ground concerning the unavailability of the expert report. Having regard to the history of the matter it has not been established, although I might say at once it was not really sought to establish, that the learned Magistrate was wrong in respect of the latter issue. The materiality of the expert's report was very much a matter for his Worship. The mere possibility that another report might be more satisfactory was not a basis upon which to grant the adjournment sought. 6 I have already indicated in relation to this judgment that I would refuse leave to extend time (which in the circumstances was necessary) since it is clear that the adequacy of the medical certificate was a question of fact for the learned Magistrate and accordingly no error of law could at all events have been demonstrated. 7 When the application for adjournment was rejected counsel for the defendant withdrew. It is clear that there are, in effect, two proceedings, the first being the application for adjournment and the second being a hearing of the substantive question. It could not be suggested that the defendant was present in any material sense at the substantive hearing, although it was undoubtedly present and represented for the purposes of seeking an adjournment. 8 Mr Armfield, who appears here for the plaintiff, conceded that there was jurisdiction in the Local Court to consider whether what was in effect the default judgment that was given on the 8 June 2001 should be set aside. Proceedings on that behalf were duly commenced by the defendant and came on for hearing on 17 August 2001 before another Magistrate. 9 I should mention that, when dealing with the application for adjournment on 8 June 2001, the learned Magistrate observed, and I consider that there was a basis for this observation, that he presumed that Mr Olivieri "was an important witness in the cross-claimant's case". When the application to set aside the judgment came on for hearing no advertence was made by either party or by the Magistrate to the question whether Mr Olivieri was indeed a material witness. The application was litigated upon the sole ground of the sufficiency of the evidence that Mr Olivieri was too sick to attend the hearing on 8 June. 10 It was submitted by Mr Armfield for the plaintiff that the materiality of Mr Olivieri's evidence was a fundamental element of the defendant's case to set aside the judgment since, if his attendance was unnecessary, the fact that he could not attend was plainly immaterial. There was, to my mind, some evidence greater than a scintilla but not very much more, that Mr Olivieri's presence was important. This evidence comprised the issues in the case to which I have briefly adverted and the fact that Mr Olivieri was, it was not disputed, responsible for the day-to-day management of the defendant. 11 Mr Tregenza, for the defendant, has submitted that a fair reading of the proceedings as a whole, including what had happened before the Magistrate who gave judgment, is that the parties assumed that Mr Olivieri was a material witness. Mr Armfield, in his careful address to me, has pointed out some aspects of the transcript, especially in the first hearing, which rather suggested the opposite but at the end of the day and despite his submissions to me in this regard I find myself unable to read the transcript fairly to the parties without inferring that the issue of Mr Olivieri's illness was argued upon the assumption that he was indeed a material witness. 12 There was at all events the material to which I have already adverted which, though slight, in the absence of any further evidence and in the absence of any debate would be sufficient for present purposes or for that matter for the Magistrate below to have determined the question of materiality in favour of the defendant. 13 This brings me to the major obstacle facing the defendant in this Court, namely, is it demonstrated that the decision of the learned Magistrate to decline the application to vacate the judgment miscarried by virtue of an error of law? 14 The evidence upon which the applicant relied was the affidavit of Mr Olivieri in which he asserted that - "On the day of the hearing I was so sick that I was unable to attend the hearing. Annexed hereto [and marked with the letter X] is a copy of the Doctor's certificate stating the cause of my sickness."