Sydney Motor Market v Hytech Plastics [2004] NSWSC 762

New South Wales Supreme Court

CITATION : Sydney Motor Market v Hytech Plastics [2004] NSWSC 762 HEARING DATE(S) : 19 August 2004 JUDGMENT DATE : 2 September 2004

JURISDICTION: Common Law Administrative Law List JUDGMENT OF : Master Malpass at 1 DECISION : The summons is dismissed; the plaintiff is to pay the costs of the proceedings; the exhibit may be returned.

CATCHWORDS : Appeal from Tribunal - claim dismissed for want of prosecution - non-appearance by plaintiff - denial of procedural fairness and error concerning a question with respect to a matter of law. LEGISLATION CITED : Consumer Trader & Tenancy Act 2001, s65 Sydney Motor Market Pty Limited Pty Limited (Plaintiff) PARTIES : Hytech Plastics Pty Limited t/as Abacus Shade Structures (First defendant) Consumer Trader & Tenancy Tribunal (Second defendant) FILE NUMBER(S) : SC 30015/04 COUNSEL : Mr G Kinsey (Solicitor) (Plaintiff) Mr G Willis (Solicitor) (First Defendant) SOLICITORS : G A Kinsey (Plaintiff) Burston, Cole & Co (First Defendant)

LOWER COURT Consumer Trader and Tenancy Tribunal of NSW JURISDICTION : LOWER COURT 03/31541 FILE NUMBER(S) : LOWER COURT Member G O'Keeffe JUDICIAL OFFICER :

- 9 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST

Master Malpass

Thursday 2 September 2004

30015 of 2004 Sydney Motor Market Pty Limited v Hytech Plastics Pty Limited t/as Abacus Shade Structures & Anor

JUDGMENT 1 Master: The plaintiff is a vendor of motor vehicles. Mr Assafiri is its sole director. The plaintiff engaged the first defendant to install a hail net at its car yard in Cabramatta. Mr Moonen is a director of the first defendant. 2 Following the installation of the net, disputes arose between the parties. This led to the plaintiff bringing an application in the Consumer Trader & Tenancy Tribunal (the Tribunal). A claim for damages was propounded. Generally speaking, the claim was for repair costs. It was pressed to the jurisdictional limit of the Tribunal ($25,000). 3 Messrs Assafiri and Moonen appeared before the Tribunal on behalf of the respective parties. On 4 September 2003, the Tribunal gave directions. The Tribunal fixed a hearing date (7 October 2003). 4 There was non-compliance with the directions by the plaintiff. Documents which should have been served on or before 11 September 2003 were first produced on the hearing date. 5 On 7 October 2003, the defendant was given the opportunity to adjourn the proceedings because of the non-compliance. It elected to proceed and a hearing took place (in the order of five hours). 6 At the conclusion of the evidence taken on that day, the Tribunal member indicated that he wanted further material "about the sails". Further directions were given and the proceedings were adjourned part heard. 7 The directions included the following:- 1. The parties have leave to file and serve further evidence of an expert nature with respect to: a) whether any inherent fault exists in the design or construction of the sails; b) whether the sails were properly secured; c) the cost of replacing each of the two southern sections of sail (marked on the Hall plan as sections (1) & (2); and d) whether the remaining sails can be repaired and if so, at what costs and if not, what is the cost of their replacement, by 4 November 2003 ; 2. The applicant is to facilitate access to the relevant premises for the purpose of any expert inspection; 3. The parties experts shall consult each in an attempt to narrow the points of difference between them and identify the remaining points of difference and shall file with the Tribunal, a copy of a document setting out all points upon which they agree and all remaining points of difference, by 18 November 2003 …