Bytewin Bros v Classic Tiles [2004] NSWSC 355

New South Wales Supreme Court

CITATION : Bytewin Bros v Classic Tiles [2004] NSWSC 355 HEARING DATE(S) : 27 April 2004 JUDGMENT DATE : 30 April 2004 JURISDICTION: Common Law Division JUDGMENT OF : Master Malpass DECISION : The application for leave is refused and the Summons is dismissed. The plaintiff is to pay the costs of the Summons. The Exhibits may be returned.

CATCHWORDS : Leave to appeal - setting aside Order for Judgment by the filing of an Amended Notice of Grounds of Defence after the original notice had been struck out - error of law. LEGISLATION CITED : Local Courts (Civil Claims) Rules 1988, Pt 9 r 1 (1) and r 6 (1), Pt 10 r 1, r 2, r 2 (1) (b), r 3. CASES CITED : N/A Bytewin Bros Pty Ltd (Plaintiff) PARTIES : v Classic Tiles Pty Ltd (Defendant)

FILE NUMBER(S) : SC 12555 of 2003 COUNSEL : Mr A M Gruzman (Plaintiff) Mr A Ogborne (Defendant) SOLICITORS : McBride Harle & Martin (Plaintiff) Appleton & Co Lawyers (Defendant)

LOWER COURT Local Court JURISDICTION : LOWER COURT 124 of 2003 Downing Centre Sydney FILE NUMBER(S) : LOWER COURT Grant LCM and McMahon LCM JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Master Malpass

Friday 30 April 2004

12555 of 2003 Bytewin Bros Pty Ltd v Classic Tiles Pty Ltd

JUDGMENT 1 MASTER: The dispute between the parties has had a long and messy history in the Local Court. Unfortunately, what has been in dispute may be described as relatively modest in quantum. The dispute has now made its way to this Court. 2 The dispute arose out of a contract whereby the plaintiff was to do certain work at Chatswood. It did work and received certain payments. A part of its claim remained unpaid. The defendant took the stance that the work had not been completed and that it was thereby put to the expense of engaging other contractors so that the work could be completed. 3 The plaintiff commenced proceedings in the Small Claims Division of the Local Court. It filed a Statement of Liquidated Claim for recovery of a sum in the order of $4,000. 4 The claim was defended. The defendant filed a Defence and a Cross-Claim. The Cross-Claim took the form of an Ordinary Statement of Claim and sought damages. It was also defended and a Notice of Grounds of Defence was filed. 5 Initially, the plaintiff did not have legal representation. Curiously, it retained the services of Mercantile Agents who carried on their business in Queensland. 6 Because the defendant's Cross-Claim was in the order of $22,000, the proceedings were transferred out of the Small Claims Division and into the General Division of the Local Court. 7 The matter came before the Local Court on a number of occasions. There was a history of default on the part of the plaintiff (inter alia a failure to provide particulars) both of its claim and Defence to the Cross-Claim. 8 On 14 April 2003, orders were made for the furnishing of particulars. Orders were also made that in default of those orders, the Statement of Liquidated Claim and the Notice of Grounds of Defence to the Cross-Claim were to be struck out and the defendant was to be at liberty to apply forthwith for an Order for Judgment. 9 The particulars were not furnished. The matter came before the court again on 28 April 2003. The plaintiff did not appear. Orders were made for the striking out of both the Statement of Liquidated Claim and the Notice of Grounds of Defence to the Cross-Claim. 10 Documentation provided by the court supplies further information as to what happened on 28 April 2003. There is a reference to "Order for judg." and a further reference to "ABOVE ORDER FOR JUDGMENT IS IN FAVOUR OF THE DEFENDANT/CROSS-CLAIMANT AGAINST THE PLAINTIFF/CROSS-DEFENDANT" (see Annexure H to affidavit sworn by Mr Dunne on 31 October 2003). On that day, the defendant took steps to obtain an Order for Judgment. On 12 June 2003, an Order for Judgment and Registrar's Notice of Order for Judgment dated 12 June 2003 came into being. (purportedly pursuant to rules 1 and 3 of Pt 10 of the Local Courts (Civil Claims) Rules 1988 (the Rules) ). 11 Thereafter, the matter was listed for trial as to assessment and came before the court initially on 10 July 2003. There were certain consent adjournments. The plaintiff was then pursuing out of court resolution. 12 On 19 August 2003, the plaintiff obtained legal representation. On 1 September 2003, an attempt was made to file a Notice of Motion seeking to have set aside orders earlier made by the court. It appears that the Registry would not accept the Notice of Motion and advised the plaintiff that the appropriate procedure was to file a Defence to the Cross-Claim. An Amended Notice of Grounds of Defence to Cross-Claim was filed 3 September 2003. 13 On 4 September 2003, the matter was again before the court for assessment. On that day, the plaintiff sought to move on a Notice of Motion dated 1 September 2003. The Notice of Motion and supporting affidavits were filed in court and a contested hearing took place before Grant LCM. 14 Prior to the commencement of the hearing, the court was told that the Amended Defence to the Cross-Claim had been filed. However, the fact of the filing of that document seems to have been put aside both by the parties and the court. The hearing that took place proceeded on the basis that the Judgment remained on foot and had not been set aside by operation of the Rules. 15 Following the hearing of the Notice of Motion, the learned Magistrate refused to grant the relief sought by the plaintiff. 16 The matter was then stood over to the following day, to enable the assessment to take place. 17 On 5 September 2003, a contested assessment took place before another Magistrate (McMahon LCM). 18 Again, the matter of the filing of the Amended Defence was mentioned. The learned Magistrate took the view that if the plaintiff wanted to challenge what had happened on the previous day, it was open to it to appeal. The assessment then proceeded and was concluded (inter alia the learned Magistrate assessed the damages at $22,705.32). 19 By Summons filed on 30 September 2003, the plaintiff seeks leave to appeal against the decisions made respectively on 28 April 2003, 12 June 2003, 4 September and 5 September 2003. 20 Broadly speaking, two matters were argued. One concerns the application of r 2 (1) (b) of Pt 10 (the rule). The other alleges error on the part of Grant LCM in the exercise of her discretion to refuse the relief sought in the Notice of Motion. 21 Part 10 is headed "Order for judgment". It is in the following terms:- " 1 Order for judgment