De La Vega & Anor v Paul Arena Installations & Maintenance Pty Limited [2006] NSWSC 592

New South Wales Supreme Court

CITATION : De La Vega & Anor v Paul Arena Installations & Maintenance Pty Limited [2006] NSWSC 592

HEARING DATE(S) : 14 June 2006

JUDGMENT DATE : 21 June 2006

JUDGMENT OF : Associate Justice Malpass at 1

DECISION : The claims for relief fail. The Summons is dismissed. The Plaintiffs are to pay the costs of the Summons. The Exhibit may be returned.

CATCHWORDS : Leave to appeal from the Local Court - extension of time - relevant conciliations - failure to demonstrate an entitlement to relief.

Alejandro De La Vega (First Plaintiff) PARTIES : De La Vega Architects Pty Limited (Second Plaintiff) Paul Arena Installations & Maintenance Pty Limited (Defendant)

FILE NUMBER(S) : SC 14655/05

COUNSEL : Mr J S Mendel (First and Second Plaintiffs) Mr J R Wilson SC (Defendant)

SOLICITORS : Charles G Roth (First and Second Plaintiffs) Philip J King Solicitor (Defendant)

LOWER COURT JURISDICTION : Local Court

LOWER COURT FILE NUMBER(S) : 9566/02

LOWER COURT JUDICIAL OFFICER : Mr Falzon LCM

LOWER COURT DATE OF DECISION : 17 June 2005

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Associate Justice Malpass

Wednesday, 21 June 2006

14655 of 2005 Alejandro de la Vega v Paul Arena Installations & Maintenance Pty Limited

JUDGMENT 1 His Honour: Mrs Wang (the owner) was the owner of premises at 47 Peronne Avenue, Clontarf (the "premises"). The second Plaintiff was engaged by the owner as architect and project manager for residential building work being carried out to the premises. The first Plaintiff is the principal of the second Plaintiff. The Defendant was an electrician who carried out electrical works at the premises as a sub-contractor. Mr Arena is the principal of the Defendant. 2 UB Constructions Pty Limited (the "builder") was engaged as the builder. The owner, the builder and the second Plaintiff were parties to a Project Management and Construction Agreement. 3 At the request of the builder, the Defendant performed work at the premises and delivered invoices for the work done to the builder. Mr Arena was told that he should speak to the first Plaintiff concerning the matter of payment of the invoices. He spoke to the first Plaintiff. The Defendant was in effect guaranteed payment for the work done within seven days of practical completion. Subsequently, the Defendant performed further work on the premises. Practical completion has taken place and the Defendant has not been paid for the work. 4 The parties came to have legal representation. This state of affairs has continued. 5 The Defendant brought proceedings in the Local Court to recover the amount claimed by him (the sum of $22,390.00 plus interest). A default judgment was obtained on 10 October 2002. It was subsequently set aside by consent and the owner was added as a third Defendant. On the application of the owner, the proceedings were transferred to the Consumer, Trader and Tenancy Tribunal (the "Tribunal"). It was listed for hearing on 28 October 2003. On that day, settlement discussions commenced between the Defendant and the Plaintiffs. The proceedings were stood over by the Tribunal and a hearing date was allocated for 9 December 2003. 6 On 2 November 2003, the solicitor for the Defendant wrote to the solicitor for the Plaintiffs. The letter contains the following: "I refer to our discussions prior to the hearing of this matter on 28 October 2003. I confirm the agreement between our respective clients on the following terms: 1. Your client to pay into trust the sum of $27,350.58, being the full amount of the applicant's claim, plus the sum of $3,000.00 on account of the applicant's costs, making a total of $30,350.58. 2. The applicant is to proceed against the third respondent, the hearing date for the matter being fixed for 9 December 2003. 3. If the applicant is successful against the third respondent, then the third respondent pays the amount of the applicant's claim plus the applicant's costs, and the said sum of $30,350.58 is released to your clients. 4. If the applicant is unsuccessful against the third respondent, then the applicant is to be paid from the monies held in trust. Would you kindly confirm the foregoing, and if your clients' instructions are in accordance with the foregoing, I suggest that an appropriate deed of agreement be drafted and submitted for execution. I look forward to hearing from you. …".