Chippindale v Owners Corporation Strata Plan 7260 [2013] NSWSC 951

Supreme Court New South Wales

Medium Neutral Citation: Chippindale v Owners Corporation Strata Plan 7260 [2013] NSWSC 951 Hearing dates: 28/06/2013 Decision date: 19 July 2013 Before: Fullerton J Decision: 1. The summons is dismissed. 2. The plaintiff is to pay the defendant's costs. Catchwords: APPEAL FROM LOCAL COURT - claim under contract for provision of building services to Owners Corporation - Magistrate found Secretary did not have the authority to contract - claims in contract and quantum meruit dismissed Legislation Cited: Local Court Act 2007 Strata Schemes Management Act 1996 Cases Cited: Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; 244 CLR 427 Quarante Pty Ltd v The Owners Strata Plan No 67212 [2008] NSWCA 258 Texts Cited: JD Heydon, Cross On Evidence, 9th ed (2013) LexisNexis Butterworths at [41130] Category: Principal judgment Parties: Peter Chippindale t/as PLC Carpentry Services (Plaintiff) Owners Corporation Strata Plan 7260 (Defendant) Representation: Counsel: In person (Plaintiff) G Waugh (Defendant) Solicitors: In person (Plaintiff) Hunt & Hunt (Defendant) File Number(s): 2012/289434 Decision under appeal Jurisdiction: 9109 Date of Decision: 2012-06-26 00:00:00 Before: Stapleton LCM File Number(s): 2010/212267

Judgment 1HER HONOUR: On 26 June 2012 Stapleton LCM dismissed the plaintiff's second amended statement of claim for $38,493, plus interest and costs, for services rendered under a written agreement dated 25 February 2008. At all relevant times the plaintiff was a builder trading as PLC Carpentry Services and the defendant was an Owners Corporation under the Strata Schemes Management Act 1996 ("the SSM Act"). 2The agreement upon which the plaintiff sued was alleged to have been made with the authority of the defendant under the hand of Mr O'Neal, the Secretary of the defendant at the relevant time. The plaintiff conducted his case on the basis of the authority asserted by Mr O'Neal in his defence of the cross-claim brought by the Owners Corporation and in his evidence to the effect that he had authority to enter into the contract as Chairman and Secretary of the Owners Corporation and/or was authorised in accordance with the resolutions of the Executive Committee of the Owners Corporation and/or because he was appointed "Executive" of the Owners Corporation by resolution of the Executive Committee. 3The Magistrate found that Mr O'Neal did not have the authority to contract on behalf of the Owners Corporation, whether on his own behalf or on behalf of the Executive Committee, and dismissed the plaintiff's claim in contract for that reason. 4Consequential upon dismissing the plaintiff's claim the Magistrate also dismissed the Owners Corporation's cross-claim against Mr O'Neal as the Secretary of the Owners Corporation and a cross-claim brought by him against Mr Joiner, another member of the Executive Committee of the Owners Corporation. The disposition of the cross-claims and the refusal of equitable relief are not the subject of any relief the plaintiff seeks by summons in this Court. 5The alternative equitable relief by way of quantum meruit was dismissed on the basis that the Owners Corporation did not request the plaintiff to provide the carpentry services and that the plaintiff took no steps, on his own behalf, to ascertain whether Mr O'Neal had authority to sign the letter of agreement and bind the Owners Corporation. The Magistrate found as a fact that the Owners Corporation, through its Executive Committee, knew nothing of the signed agreement until the plaintiff delivered an invoice two years after the date of the letter. 6The Magistrate also ordered that the plaintiff pay the defendant's costs, including the costs of the first cross-claim, on an indemnity basis from the commencement of proceedings. There is no appeal from that order. 7The proceedings in this Court are governed by ss 39 and 40 of the Local Court Act 2007 which provide that an appeal from a decision of the Local Court may only be taken as of right on a question of law and that questions of mixed fact and law require a grant of leave. 8The grounds of appeal (which I understand were drafted by the plaintiff who appears on his own behalf in the proceedings in this Court) assert what are said by to be multiple errors in the Magistrate's approach to the issues raised by the pleadings and in her reasoning to the conclusion that the agreement upon which the plaintiff sued was unenforceable. 9In the hearing before me the plaintiff condensed those grounds into what were said by him to be four errors of law, some of which are interrelated and some of which had a substratum of fact. To the extent that there is a question of mixed fact and law there is no objection by the defendant to leave being granted to consider that question. My interpretation of the errors the plaintiff sought to rely upon are as follows: (a) The Magistrate failed to comply with relevant provisions of the Uniform Civil Procedure Rules 2005 (UCPR) by failing to afford what the plaintiff described as "agreed facts" the full weight that the parties agreed they should carry and made findings of fact contrary to the agreed facts; (b) The Magistrate misconstrued the Minutes of the Annual General Meeting of 15 October 2007 and, in particular, the terms of Resolutions 11 and 12 of that meeting, when considering the source of Mr O'Neal's authority to bind the Owners Corporation; (c) The Magistrate wrongly applied the SMM Act when considering the question whether an individual member of an Owners Corporation can legally bind the owners of that corporation; and (d) The Magistrate was in error in refusing to disqualify herself from hearing the claim (or continuing to hear the claim) on the grounds of apprehended bias. 10I am satisfied the Magistrate's analysis of the evidence and her factual findings referable to the evidence, both for the purposes of construing relevant documents and generally (including the question whether she ought recuse herself from hearing the matter), do not disclose error. I am also satisfied that her Honour's judgment does not otherwise disclose the errors of law contended for by the plaintiff, inclusive of any error in refusing to disqualify herself from hearing the claim. What follows are my reasons for coming to that conclusion.