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. …". Save for the question of an implied term, the letter has been regarded by the parties as setting out the agreement reached between them. 7 By letter dated 27 November 2003, the solicitor for the Plaintiffs made a request to the solicitor for the Defendant to please urgently advise if it required their clients to file a statement in the proceedings before the Tribunal. No response was made to that request. The sum of $30,350.58 was not paid into the Trust Account until the afternoon of 8 December 2003. The Defendant discontinued its claim against the Plaintiffs and proceeded with the claim against the owner. 8 The hearing took place on 9 December 2003. The proceedings were heard by Senior Member Paull. The Defendant was represented by counsel. It did not seek to adduce any evidence from the Plaintiffs. The Senior Member gave her written decision on 31 March 2004. She came to the conclusion that the application should be dismissed and so ordered. 9 The Senior Member rejected the Defendant's contention that it had contracted either directly with the owner or her agent to do the electrical work (in so doing she rejected contentions of both actual and ostensible authority). 10 The attention of the Court has been drawn by the Plaintiffs to inter alia two passages in the written decision. The passages are as follows: "In the absence of any evidence from the builder and in particular the architect, it is open to me to infer that the applicant chose not to call them as it did not assist it's case and to conclude that that neither the architect nor the builder had actual authority to contract with the applicant on the owner's behalf." "None of the evidence leads me to conclude that the applicant in entering into the contract and commencing the work, acted upon any representation made to him that either the builder or architect had apparent authority to contract on the owners behalf." 11 On 28 May 2004, the Defendant commenced proceedings in the Local Court to recover inter alia the sum of $30,358.58. The process relied on an agreement as set forth in the letter dated 2 November 2003. 12 A defence was filed by the Plaintiffs. It contained the following: "1. In relation to paragraphs 1 to 9 inclusive the defendants say that it was a term of the Agreement that it was an implied term of the Agreement that the plaintiff, in prosecuting the proceedings against Mrs Wang, conduct the case with all due care in maintaining its claim against Mrs Wang to succeed in the proceedings including adducing all of the relevant evidence, undertaking all appropriate re-examination, cross examination and making all appropriate legal submissions. 2. In breach of the Agreement in the terms thereof the plaintiff failed to conduct and prosecute the proceedings against Mrs Wang, with all due care and failed to:- (a) adduce all of the relevant evidence; (b) undertake all appropriate re-examination; (c) undertake all appropriate cross-examination; and (d) failed to make all appropriate legal submissions." 13 In May 2005, a two-day hearing took place before Mr Falzon LCM. There was no dispute that the letter dated 2 November 2003 set forth the express terms of the agreement made between the parties. The issues he was asked to determine was whether or not the agreement contained also the implied term as alleged in the defence and whether or not there had been breach of that implied term. 14 The Plaintiffs had the onus to make good this defence. Counsel for the Defendant made detailed written submissions (inter alia opposing the implication of any such term as alleged). 15 The evidence before the Magistrate included a statement from the first Plaintiff (it inter alia set out the evidence that he would have given before the Tribunal). 16 The Magistrate delivered judgment on 17 June 2005. He found in favour of the Defendants. The effect of what was said in his judgment was to reject both the allegations of the implied term and of the breach thereof. 17 On 6 October 2005, the Plaintiffs filed a Summons in this Court. It propounds a challenge to the decision of the Magistrate. The Summons has been filed well out of time and the challenge is presently incompetent. 18 The Summons seeks leave to appeal against the decision of the Magistrate. It is accepted by the Plaintiffs that leave is required. It is said that grounds relied on involve a question of mixed law and fact. In addition to the granting of leave, the Plaintiffs also need an extension of time in which to file the Summons. Both of these matters involve an exercise of the discretionary power of the Court. 19 As it would be futile to grant either an extension of time or leave, if the challenge was lacking in merit, I shall first briefly look at the question of its prospects of its success. 20 The Summons identified nine grounds of appeal. It is unnecessary to address each of them individually. It seems to be common ground that in substance the appeal encompassed two areas. The first area concerned whether or not there had been error on the part of the Magistrate in dealing with the questions of the alleged implied return and the breach thereof. The second area concerned an allegation of apprehended bias. 21 Counsel for the Plaintiffs has relied on a detailed written outline of submissions. This has been supplemented by lengthy oral argument. 22 In many respects, it seems to me that the submissions misunderstood what was said by the Magistrate. I do not accept the contention that he failed to address the real issues. A kernel aspect of this case seemed to rely on the failure to either obtain a statement from the first Plaintiff and/or use his evidence before the Tribunal. What the submissions fail to do is demonstrate how evidence that the first Plaintiff may have given (if called) would have brought about a different result. 23 I am not satisfied that there was error in the result reached by the Magistrate. There may be debate as to the precision or accuracy of certain of his observations. Be that as it may, it seems to me that the effect of his findings are reasonably clear. Submissions have been made as to the correctness of some of his reasoning process. If there be error in the expression of reasoning process that led to the result it seems to me that any such error is of no consequence on this case. It seems to me that he reached the right result and that no basis has been shown for the disturbing of his decision. 24 It seems to me inter alia that he was correct in concluding that the said alleged term should not be implied. If the view was to be taken that a term should be implied, it seems to me that it would have to be a term of much narrower content. 25 In my view, the allegation of apprehended bias is misconceived. During submissions, the Court was taken to various passages in the transcript (and it has been told that there are others to similar effect). Subsequent to the reserving of judgment, I have carefully read the transcript. 26 The submissions made on behalf of the Plaintiffs contain inter alia the following: "Demonstrated by concentrating on irrelevant matters in the judgment (see p4.23-33, 5.35-45, 5.53-57) and during the hearing (see transcript generally including as an example T1/3/534, T26/5/5 p1-13) or being misguided or confused (see for example T26/5/5 p 12 or showing favouritism towards Arena (see for example T1/3/5 p46.4, T26.5.5 p3.55 and p4.39)." 27 Largely, what is complained of occurred during exchanges passing between the Magistrate and Counsel. I am not persuaded there was any concentration on irrelevant matters. In my view, a reading of the transcript reveals the Magistrate doing his best to identify and discuss with counsel what he perceived to be the real issues in the case. I am not persuaded that it shows favouritism to any party or that it generally demonstrates an inability or unwillingness or both to consider the matter in a balanced way. Even if a different view were to be taken on these matters, it does not seem to me that it would assist the Plaintiffs in this case. The right result was reached and there was no basis for the disturbing of the decision. 28 I consider that the application for an extension of time would fail for reasons other than the lack of merit of the challenge. There has been considerable delay and it has not been satisfactorily explained. 29 What is relied on to explain the delay may be found in two affidavits. One was sworn by the Plaintiff himself. The other was sworn by his solicitor, Mr Roth. Largely, what is advanced is in the nature of distraction or preoccupation with other matters (including work and the health of his father). There was also delay in the obtaining of the transcript which contained the judgment of the Magistrate. 30 Although the first Plaintiff says that it was always his intention to file an appeal, he did not give instructions to do so until on or about 12 August 2005. An application for the transcript was not made until 24 August 2005. Although the transcript was not received until 24 October 2005, the summons was earlier filed on 6 October 2005. It has not been amended. 31 It is of significance that at all material times the Plaintiffs have been legally represented. They have had available to them the services both of a solicitor and counsel. By letter dated 22 June 2005, their solicitor advised that a meeting with counsel should be arranged to review the prospects of an appeal. The affidavit of the first Plaintiff suggests that he may be a professional man of considerable experience in dealing with large projects and other court proceedings. 32 The Defendant also contends that the delay has caused prejudice to it. Despite the guarantee of payment, it still remains unpaid for work that was performed many years ago and is facing an assessment of costs in excess of $20,000.00 as a consequence of the unsuccessful proceedings in the Tribunal. For present purposes, it is unnecessary to dwell on this consideration. 33 I also consider that the application for leave is also doomed for other reasons. Whilst the amount involved in dispute is of significance to the parties, it is not a large sum. The case is one that falls to be determined on its own particular facts. It does not involve any novel proposition of law. Leaving aside the absence of manifest error, it does not seem to me to be in the public interest that such a dispute should take up further valuable Local Court hearing time. 34 I may add that it seems that the Defendant may well have an additional good cause of action which was not relied on in the Local Court proceedings. If that be the case, a further trial may be of no benefit to the Plaintiffs. 35 The claims for relief fail. The Summons is dismissed. The Plaintiffs are to pay the costs of the Summons. The Exhibit may be returned. ********** 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.