New South Wales Supreme Court CITATION : Jones & Jones Master Plumbers Pty Limited v Nuvista Developments Pty Limited [2004] NSWSC 709 HEARING DATE(S) : 5 August 2004 JUDGMENT DATE : 12 August 2004 JURISDICTION: Common Law JUDGMENT OF : Master Malpass at 1 DECISION : The summons is dismissed; the plaintiff is to pay the costs of the proceedings; the exhibits are to be returned CATCHWORDS : Appeal from local court - alleged failure to take evidence in account - alleged error in rejecting tender of a document - denial of natural justice PARTIES : Jones & Jones Master Plumbers Pty Limited (Plaintiff) Nuvista Developments Pty Limited (Defendant) FILE NUMBER(S) : SC 12435/03 COUNSEL : Mr I Griscti (Plaintiff) Mr A J Patterson (Defendant) SOLICITORS : Gadens Lawyers (Plaintiff) Otto Stichter & Associates (Defendant) LOWER COURT Local Court JURISDICTION : LOWER COURT 2249/02 FILE NUMBER(S) : LOWER COURT Emmett LCM JUDICIAL OFFICER : - 7 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Master Malpass Thursday 12 August 2004 12435 of 2003 Jones & Jones Master Plumbers Pty Ltd v Nuvista Developments Pty Ltd JUDGMENT 1 Master: The defendant was the development company responsible for a project known as Galleries Victoria Foodhall. The plaintiff had entered into a contract with another company (referred to as CPM) to perform certain plumbing work in respect of that project. 2 The plaintiff performed certain work in respect of that contract (as early as June 2001). Thereafter, it entered into a contract with the defendant and it performed further work (until about 19 July 2001). 3 An invoice dated 31 July 2001 was provided to the plaintiff. Although it provided information as to labour charges and materials, it did not identify the work in respect of which the claim for payment was made. 4 Dispute arose between the parties concerning payment and only part payment was made. In 2002, the plaintiff commenced proceedings in the Local Court claiming the unpaid balance in the sum of $16,580.56. The originating process made limited disclosure of the nature of the claim (inter alia it was lacking in particulars). 5 The proceedings were defended. The Court gave directions (including as to the service of written statements). The matter was set down for trial. 6 A contested hearing took place which occupied two hearing days (12 June and 22 August 2003). 7 At the commencement of the hearing, the court was informed that the plaintiff was ready to proceed and that it relied on two documents (a statement and a reply). 8 During the first of the two days, there had been discussion as to evidentiary deficiencies (including those affecting the plaintiff's case). The reply had been described as being "essentially a pleading". The proceedings were stood over to give the parties an opportunity to "resolve the matters". 9 Evidence was provided by way of written documents. The learned magistrate admitted a statement of Paul Jones which bore a court stamp of 10 March 2003 (it was relied on by the plaintiff) and statements of Jag Rawat, one of which was undated and the other dated 5 June 2003 (they were relied on by the defendant). She rejected the tender of a further statement from Paul Jones bearing date August 2003 (it was described as a supplementary statement). 10 The supplementary statement had not been served until 21 August 2003 (just before the hearing was to resume). It had not been served in accordance with the earlier directions. In pressing the tender, counsel for the plaintiff opposed any adjournment of the hearing. 11 In addition to the material already mentioned, the learned magistrate had before her a document prepared by the solicitors for the plaintiff entitled "Reply to the statement of Jag Rawat" (Exhibit 1). Save for not presenting any "breakdown of the work performed", it had similar content to the rejected statement. 12 The case presented by the plaintiff was that all work performed under the contract with the defendant was new work. The stance taken by the defendant was that the further work comprised both new work and rectification of defects in the work earlier performed. Further, it took the stance that it had repeatedly requested particulars of the work claimed to have been performed by the plaintiff and that the plaintiff had failed to provided such particulars. In these circumstances, it said that it was unable to determine which of the charges related to new work and which of the charges related to rectification work. 13 The conflict between the parties was thrown up from what was said in the competing statements from Messrs Jones and Rawat (inter alia as to conversations had involving Messrs Quinlan, Jones and Rawat). The learned magistrate was left to resolve this conflict without the benefit of any cross-examination. 14 Broadly speaking, the rejected statement did little more than join issue on conversations alleged by Mr Rawat, repeat the allegation that all work was new work and provide what was described as "a breakdown of the work performed". The plaintiff did not lead any evidence from Mr Quinlan. 15 The transcript records submissions made on behalf of the plaintiff identifying the difficulties that it had in giving a detailed invoice and/or particulars of its claim. It was said that the problem was due to a lack of records. The plumbers who had performed the work had only recorded hours worked but not the details of the jobs that were carried out. 16 The learned magistrate found in favour of the defendant. She dismissed the plaintiff's statement of claim and ordered it to pay the costs of the defendant. 17 An analysis of the judgment of the learned magistrate reveals that there was a finding that the further work comprised both new work and rectification work and that the plaintiff had failed to discharge the onus of proving the value of the work performed under contract. It was these findings that led her to dismissing the claim. 18 These proceedings were commenced by summons filed on 10 September 2003. The plaintiff seeks to have the orders of the Local Court set aside. The grounds alleged therein are as follows:- (a) The Court below failed to consider, adequately or at all, the evidence adduced by the plaintiff in respect of the alleged breach of contract by the defendant and the consequential loss suffered by it as a result [of] that breach; and (b) The Court below erred in point of law by maintaining that the plaintiff had not adduced sufficient evidence to establish a breach of contract by the defendant which was actionable per se. 19 During the course of the hearing, with the consent of the defendant, leave was given to amend the summons in the form of Exhibit A. The effect of the amendment was to add a further ground. It is in the following terms:- The learned Magistrate failed to ensure she had before her all relevant evidence in the matter by rejecting the tender of the supplementary statement from Mr Jones without good reason. 20 The submissions made on behalf of the plaintiff have been presented in both written form and orally. Under the heading "Conclusion", paragraphs 26 and 27 of the written submissions summarise the plaintiff's case. The paragraphs are as follows:- 26 In all the circumstances, the learned Magistrate erred in that: (a) She failed to take into account all of the evidence tendered on behalf of the plaintiff, in particular, the plaintiff's evidence concerning the agreement that had been reached between the parties on or about 15 June 2001. (b) In failing to consider all of the Plaintiff's evidence the learned Magistrate led herself into error in determining that the Plaintiff failed to adduce sufficient evidence to establish a breach of contract. (c) The learned Magistrate failed to ensure she had before her all relevant evidence in the matter by rejecting the tender of the supplementary statement from Mr Jones without good reason. 27 The justice of the case requires that the appeal be allowed and the matter be referred back to the Court below to be reheard. 21 The plaintiff accepts that it must demonstrate error in point of law. The appeal will not be successful unless the plaintiff can also demonstrate that any such error justifies the disturbing of the decision. 22 Two principal arguments are advanced on behalf of the plaintiff. Both are said to involve denial of natural justice. 23 Firstly, it is said that the learned magistrate failed to have regard to evidence presented by the plaintiff (inter alia in the statement from Mr Jones) to the effect that all of the work was new work. In support of the submission, the attention of the court has been directed to passages in the judgment of the learned magistrate which appear on page 7 of the transcript. It is further said that the failure to take this material into account saw her not resolving the conflict in the competing material provided by Messrs Jones and Rawat. 24 Secondly, it is said that in rejecting the supplementary statement provided by Mr Jones, there was a further denial of natural justice. The plaintiff presents this decision as denying it the opportunity of putting all of the relevant material before the court. 25 Neither counsel has relied on any decided case. The authorities tend to show that the requirements of natural justice do not constitute a fixed body of rules. What will amount to a denial of natural justice will depend upon the particular circumstances of the case before the court. 26 Denial of natural justice is emerging as a fertile area of putative error of point or matter of law. It may be seen as a development which has the potential to frustrate legislative intention to narrow the ambit of challenge from lower courts or tribunals. 27 I do not accept the submission that the learned magistrate failed to have regard to the material contained in the statement provided by Mr Jones. A reading of the judgment discloses express reference to the statements relied on by both parties (and to contents therein) and to the reply signed by the solicitor for the plaintiff. After referring to this material, she made the finding that the work performed by the plaintiff constituted both new work and rectification work. In my view, in reaching this finding she resolved the conflict between Messrs Jones and Rawat in favour of the defendant. She was left to do her best only having pieces of paper before her. She took a view as to the weight that could be given to the reply. The view taken was one that was reasonably open to her. I do not read her observations concerning the reply as an indication that she overlooked the evidence given by Mr Jones. 28 Even if a different approach were to be taken, each case will still fall to be determined on its own particular facts. I am not satisfied that there was a denial of natural justice in this case. 29 I should add that during submissions counsel for the plaintiff embraced the bald proposition that a failure to take into account evidence constituted a denial of natural justice. Counsel was unable to present any authority in support of that proposition. The question can be put aside for present purposes. 30 I am not persuaded that the admission of the supplementary statement would have produced a different result in this case. Even if a different view were to be taken on this matter, I am not satisfied that the rejection of the tender brought about any denial of natural justice. 31 The plaintiff contends that the rejection did not see a consideration of the tender on its merits. I do not accept that submission. It may be that the expression of her reasoning process could have been more expansive. Be that as it may, when regard is had to the relevant circumstances, the rejection of the tender was reasonably open to the learned magistrate. I am not satisfied that this decision should be disturbed. 32 The plaintiff bears the onus of satisfying the court that it is entitled to the relief sought. In my view, it has failed to discharge that onus. 33 The summons is dismissed. The plaintiff is to pay the costs of the proceedings. The exhibits may be returned. oOo Last Modified: 08/12/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.