Optrade Investments P/L v Telik Ceiling Systems P/L [2004] NSWSC 424

New South Wales Supreme Court

CITATION : Optrade Investments P/L v Telik Ceiling Systems P/L [2004] NSWSC 424 HEARING DATE(S) : 17 May 2003 JUDGMENT DATE : 21 May 2004 JURISDICTION: Common Law JUDGMENT OF : Master Harrison DECISION : (1) The appeal is dismissed; (2) The judgment and orders of the Small Claims Division of the Local Court at Parramatta dated 5 December 2003 are affirmed; (3) The summons is dismissed; (4) The plaintiff is to pay the defendant's costs as agreed or assessed.

CATCHWORDS : Appeal decision of Small Claims Division of Local Court - receipt of notice LEGISLATION CITED : Local Court (Civil Claims) Act 1970 (NSW) - s 69(2A) Optrade Investments Pty Ltd (Plaintiff) PARTIES : Telik Ceiling Systems Pty Ltd (Defendant) FILE NUMBER(S) : SC 10080/2004 Mr I Griscti (Plaintiff) COUNSEL : Mr R Newell (Defendant) Mr P Moran Colin Biggers & Paisley SOLICITORS : (Plaintiff)

Mr L Jackson, Jacksons Lawyers

LOWER COURT Local Court JURISDICTION : LOWER COURT 128/03 FILE NUMBER(S) : LOWER COURT The Registrar - Small Claims Division JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MASTER HARRISON

FRIDAY, 21 MAY 2004

10080/2004 - OPTRADE INVESTMENTS PTY LTD v TELIK CEILING SYSTEMS PTY LTD

JUDGMENT (Appeal decision of Local Court - Small Claims Division- receipt of notice) 1 MASTER: By summons filed 13 January 2004 the plaintiff seeks firstly an order that the judgment entered on behalf of the plaintiff against the defendant in the Small Claims Division of the Local Court at Parramatta in proceedings No 128/03 on 5 December 2003 be set aside; and secondly, an order that the matter be remitted to the Small Claims Division of the Local Court at Parramatta to be heard and determined according to law. The plaintiff relied on the affidavit of Joseph Di Giulio sworn 19 February 2004 and two affidavits of Jennifer Hammond sworn 20 February 2004 and 12 March 2004. The defendant relied on the affidavit of George Ananin sworn 3 March 2004 and the affidavit of Lance Edward Jackson sworn 8 March 2004. The plaintiff is Optrade Investments Pty Limited (Optrade). The defendant is Telik Ceiling Systems Pty Ltd (Telik). 2 At the outset, it may be helpful to make some brief comments concerning the remedy pursued by the plaintiff. Section 69(2A) of the Local Courts (Civil Claims) Act 1970 (NSW) allows an appeal to this Court from the Small Claims Division of a Court only on the grounds of lack of jurisdiction or a denial of natural justice. Section 69(4) of the Act provides that the court may determine an appeal by either (a) setting the judgment or order aside or (b) by varying the terms of the judgment or order or (c) by setting the judgment or order aside and remitting the matter for determination in accordance with the court's directions or (d) by dismissing the appeal. The onus lies on the plaintiff to demonstrate that there has been a denial of natural justice.