Maconachie v Kullenberg & Ors [2004] NSWSC 1122

New South Wales Supreme Court

CITATION : Maconachie v Kullenberg & Ors [2004] NSWSC 1122 HEARING DATE(S) : 23 November 2004 JUDGMENT DATE : 30 November 2004 JURISDICTION: Common Law Division JUDGMENT OF : Master Malpass at 1 DECISION : The summons is dismissed; the plaintiff is to pay the costs of the summons.

CATCHWORDS : Denial of procedural fairness before Tribunal - reasonable opportunity had to deal with questions of joinder and order for payment of money - legal representative allows orders to be made on an undefended basis - extension of time - futility and explanation for delay. LEGISLATION CITED : Consumer Trader & Tenancy Tribunal Act 2001 Peter Robert Maconachie (Plaintiff) PARTIES : Frank Pierre Kullenberg (First Defendant) Elaine Ann Kullenberg (Second Defendant) Consumer Trader & Tenancy Tribunal (Third Defendant) FILE NUMBER(S) : SC 13297 of 2004 COUNSEL : Mr B Slowgrove (Plaintiff) In person (First and Second Defendants) SOLICITORS : Marriott Oliver (Plaintiff) Crown Solicitor (Third Defendant)

LOWER COURT Consumer Trader and Tenancy Tribunal of NSW JURISDICTION : LOWER COURT 04/20472 FILE NUMBER(S) : LOWER COURT Member J Farey JUDICIAL OFFICER :

- 6 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Master Malpass

30 November 2004

13297 of 2004 Peter Robert Maconachie v Frank Pierre Kullenberg & Ors

JUDGMENT 1 Master: The first and second defendants purchased a Winnebago motor home (the vehicle) from Peter Maconachie Pty Limited (the company). The contract for sale contained a buy-back arrangement. The company did not buy back the vehicle. 2 The defendants sold the vehicle for a sum less than the buy-back figure. 3 The defendants applied to the Consumer Trader & Tenancy Tribunal (the Tribunal) to recover the amount of the deficiency and expenses (they waived what exceeded the monetary jurisdiction of the Tribunal). 4 The proceedings were listed for directions on 21 June 2004. The plaintiff was present (he may have then been appearing for the company) and directions were given. Subsequently, the matter was listed for hearing on 9 August 2004. 5 On 9 August 2004, a hearing took place. Ms Longbottom appeared for the company. The defendants did not have legal representation. The Tribunal made the following orders:- 1. The application is amended to include as a respondent Peter Maconachie. 2. The Tribunal orders that PETER MACONACHIE PTY LIMITED & PETER MACONACHIE jointly and severally pay FRANK PIERRE & ELAINE ANN KULLENBERG the sum of $25,000 being $21,176.40 short fall on return of vehicle and $3,823.68 additional interest. 6 On 10 August 2004, on behalf of the company a request was made for a statement of reasons. On 10 September 2004, on behalf of the plaintiff, a request was made by letter that the orders of the Tribunal be vacated. The reasons were provided under cover of a letter dated 15 September 2004. By letter dated 17 September 2004, the Tribunal advised that it was not prepared to consider the application to vacate its orders. 7 On 8 October 2004, the plaintiff filed a summons in this court. He seeks to have the order made against him set aside on the basis of denial of procedural fairness only. Such relief is available under s65 of the Consumer Trader & Tenancy Tribunal Act 2001 (the Act). In these circumstances, matters such as error of law can be put aside. The summons has been brought out of time. It is incompetent unless an extension of time is granted. The plaintiff seeks such an extension of time. It is opposed by the defendants. 8 The summons was heard on 23 November 2004. The plaintiff was legally represented. The defendants appeared in person. 9 A bare minimum of material has been placed before the court. There is no evidence from the plaintiff himself. The paucity of the material may of itself suffice to lead to a dismissal of the summons. There is limited information as to what happened during the hearing. 10 The court does not have a transcript of the proceedings (the hearing may not have been recorded). It does have a copy of the reasons for decision. 11 The plaintiff relies on an affidavit sworn by Lorelle Jenny Longbottom. She is a solicitor employed by the firm Marriott Oliver. The firm acts for the plaintiff in these proceedings. It received instructions to act for him on 10 August 2004. The firm acted for the company in the proceedings before the Tribunal. 12 Largely, the affidavit sworn by Ms Longbottom annexes documentation. Paragraphs 10-16 thereof, depose briefly as to aspects of what happened during the hearing before the Tribunal. I do not find this material particularly helpful. It reads as follows:- 10. No leave was ever given by the Tribunal for a legal representative to appear on behalf of Peter Robert Maconachie. 11. During the hearing the Chairperson said words to the effect "Who is your client? Do you represent Peter Maconachie Pty Limited, the corporate entity or Peter Maconachie?" I replied with words to the effect "I represent Peter Maconachie Pty Limited, the corporate entity only". 12. During the hearing Mr Frank Pierre Kullenberg said words to the effect, "My expectation is that if an order is made against the company it is unlikely that we will see the money. This is because at the last hearing Peter Maconachie indicated that the company was being wound up and had no assets". 13. The Chairperson said words to the effect, "There may be other ways to make Peter Maconachie personally liable, my concern however is with the other person involved in the sale". 14. The Chairperson said to me, "Is there anything you have to say about this issue?" I replied with words to the effect, "Peter Maconachie is not a respondent to the application, the only respondent is Peter Maconachie Pty Limited". 15. The Chairperson said words to the effect, "That is correct, but I could always amend the application". 16. There was no further discussion at the Hearing in relation to amending the application. 13 There was no cross-examination of Ms Longbottom. The defendants have not adduced any evidence in these proceedings. Both sides have made many statements from the bar table. Some of it is conflicting. 14 The case advanced on behalf of the plaintiff is set forth in the written outline of argument prepared by his counsel. It is said, inter alia, that the plaintiff was made a respondent at the conclusion of the hearing against his company at which he was not present. 15 When the order was made has been left unclear. It may be that the order was made at the conclusion of the hearing. However, what material there is reveals that the question of joinder came up for discussion at some unidentified stage during the hearing. This is what appears from the affidavit of Ms Longbottom. It was supported by what was said on behalf of the defendants from the bar table. Indeed, what has been said on behalf of the defendants suggest that some considerable discussion of the matter took place during the hearing. It seems that matters such as the winding-up of the company and the stripping of its assets probably formed part of the discussion. 16 It appears that the plaintiff was the person who negotiated the sale of the vehicle. He was one of the directors of the company. It appears that he was joined as a party because of fears that the company lacked the assets to satisfy any order made against it. 17 The reasons disclose that the company tendered no documentary evidence and made no submissions in the proceedings before the Tribunal. The reasons also record that Ms Longbottom did not take issue with the joinder of the plaintiff as a second respondent. 18 The material suggests that the plaintiff ran the business of the company and had the daily conduct of its affairs. It seems to have been the corporate structure which was used for the purposes of a business carried on by him. It would appear that he gave the instructions to Ms Longbottom for the purposes of the proceedings before the Tribunal. He was before the Tribunal when directions were given. Although he was not present at the hearing itself, it is said that he was at home (it is said that he was having health problems) and that he lived but five minutes away from where it was heard. He was contactable on that day (he was notified of the orders). 19 Ms Longbottom had notice of what might happen. It was open to her to take whatever steps she considered to be necessary to deal with the joinder question and any potential orders (inter alia, she could have applied for a short adjournment to enable her to get instructions from the plaintiff and she could have appeared for him and made submissions on his behalf). Instead, she appears to have done nothing and allowed the joinder and order for payment of money to be made without opposition. 20 For completeness, I should mention that it emerged from what was said from the bar table that she may have been given the file in the matter shortly before she was told to appear before the Tribunal. 21 In determining whether or not there has been a denial of procedural fairness, the task for the court is to look at the particular circumstances of the case before it. Procedural fairness is a flexible concept. Each case can be expected to turn on its own circumstances. The onus rests with the plaintiff to demonstrate entitlement to relief. 22 On the material before me, I am not satisfied that there has been a denial of procedural fairness in this case. In my view, a reasonable opportunity was had to do whatever was necessary to protect the interests of the plaintiff before the Tribunal. The orders were made because advantage was not taken of the opportunity that was had. In these circumstances, it would be futile to grant an extension of time for the filing of the summons. 23 The supporting affidavit does not specifically address the matter of the failure to file the summons within time. However, it is known that Marriott Oliver continued to act after 9 August 2040 and formally received instructions to act for the plaintiff on 10 August 2004. Despite this, the summons was not filed until 9 October 2004. It has been said that the delay was caused by a decision to consider the reasons prior to bringing the appeal. I find that unpersuasive. The reasons were sought on behalf of the company. The grounds on which the appeal has been brought must have been known to the plaintiff and his legal advisers since 9 August 2004. The reasons afforded no utility to the case that has been litigated on behalf of the plaintiff. 24 It may be that the solicitors chose to delay the bringing of an appeal until the Tribunal had responded to their application to vacate the orders. Whatever brought about the delay, in my view it has not been adequately explained. I am not satisfied that the plaintiff has demonstrated an entitlement to an extension of time. 25 The summons is dismissed. The plaintiff is to pay the costs of the summons. **********