Supreme Court New South Wales Medium Neutral Citation: Sahota v Miroh Pty Ltd t/a "The Rooster Restaurant and Jamison Guest House" [2014] NSWSC 1118 Hearing dates: 14 August 2014 Decision date: 14 August 2014 Jurisdiction: Common Law Before: Hamill J Decision: (1) The summons (and associated appeal) is dismissed; (2) The plaintiff is to pay the defendant's costs up to 31 July, 2014 on the usual basis; (3) The plaintiff is to pay the defendant's costs from 31 July, 2014 until today on an indemnity basis. (4) The orders (for stay) made by the Local Court on 3 October, 2013 are set aside. Catchwords: CIVIL LAW - appeal against decision of Magistrate - failure to prosecute appeal - bizarre procedural history - confusion over identity of parties - summons dismissed Legislation Cited: Civil Procedure Act 2005 (NSW) Local Court Act 2007 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Category: Principal judgment Parties: First Plaintiff: Jatinder Singh Sahota Second Plaintiff: Roma Gallery Pty Ltd First Defendant: Miroh Pty Ltd t/a "The Rooster Restaurant and Jamison Guest House" Second Defendant: Komal Chhabra Representation: Counsel: No appearance (First Plaintiff) A Paterson (First Defendant) Solicitors: NA Lawyers (First Plaintiff) Maatouks Legal Business Centre (First Defendant) File Number(s): 2013/00282509 Publication restriction: Nil ex tempore Judgment 1HIS HONOUR: On the 18 September 2013 a summons was filed in the Court Registry by Jatinder Singh Sahota (the first plaintiff) and Roma Gallery Pty Ltd (the second plaintiff). The summons nominated three defendants namely, (1) Miroh Pty Ltd, (2) Komal Chhabra and (3) the Local Court of New South Wales. 2The first defendant appears represented by counsel and a solicitor. Neither the second nor third defendant appear and there is no evidence of which I am aware that either has been served with the summons. The fact that it seems that no submitting appearance has been filed by the third defendant suggests that it has not been served. 3The summons sought orders that a decision of a magistrate in a civil action be set aside. It is in the nature of an appeal under s 40 of the Local Court Act 2007 (NSW). Such an appeal lies only if it is grounded in a question of law or by leave of the Court if it is grounded in a mixed question of law and fact. The summons seeking relief sets out a number of grounds, many of which are of a procedural nature, some of which raise questions of law and, in particular, questions of natural justice. 4The matter was before the Registrar on four occasions. On the 14 March 2014 the Registrar listed the matter for hearing today. The record of proceedings indicates that the first plaintiff appeared in person before the Registrar. At an earlier call over it seems he was represented by a solicitor from a firm called NA Lawyers. At the same time the Registrar made orders that the plaintiff file written submissions by 21 July 2014 and that the defendant file written submissions by 2 August 2014. 5The matter was listed at 10.30am this morning. I came on the Bench at 10.31am and the matter was called in court at which time there was no appearance for either the first or the second plaintiff. Counsel for the first defendant indicated to me that he was unaware of whether there would be an appearance on behalf of the plaintiffs. At about 10.38am the matter was called three times outside of the court room and there was no response. I adjourned the Court and attempts were made to contact the first plaintiff through the solicitors at NA Lawyers. Those attempts were made both by my staff and by the solicitor for the first defendant. The attempts were unsuccessful. I returned to the bench at 11.22am at which time the matter was again called three times outside the court room. Again there was no appearance of the first or second plaintiffs. 6Counsel for the defendant sought an order for dismissal of the proceedings on the ground that the plaintiff had not prosecuted the case with due despatch (see Uniform Civil Procedure Rules Pt 12.7). He also relied on s 61.3 of the Civil Procedure Act 2005 (NSW) on the basis that the plaintiffs had failed to comply with the directions of the Registrar. In that regard I note whilst the first defendant filed submissions in compliance with the Registrar's order the plaintiffs did not. 7The proceedings have a lengthy history when one looks back at what happened in the Local Court. The Local Court proceedings were commenced by Statement of Claim on or about 18 February, 2011. Over time the proceedings have developed a checkered, not to say bizarre, history. The Statement of Claim itself was simple enough. In effect, the first defendant (in this court) sought damages for a breach of contract whereby the first defendant had paid for goods and the defendant (in the Local Court) had not delivered those goods. 8At an early stage in the proceedings a man attended court asserting or implying that he was the defendant named in the Statement of Claim or that he acted on behalf of the defendant. I will call that man "X". A defence was filed which apparently disclosed no arguable defence and judgment was subsequently entered in favour of the first defendant. The first defendant then attempted to enforce the judgment by means of a garnishee order. The garnishee order was directed to the second plaintiff in these proceeding (Roma Gallery Pty Limited). When the nominated garnishee failed to comply with the order the first defendant sought judgment against the garnishee. 9The application came before the Local Court on two occasions. First on the 18 July, 2013 the matter was mentioned before Magistrate Duncome. A solicitor appeared on behalf of the garnishee. The transcript suggests that a man was sitting in the back of the court who the first defendant's solicitor asserted was "X" (that is, on one view, the original defendant to the Statement of Claim). The solicitor appearing for the garnishee denied that the man was "X" and said "My instructions are that this gentleman is Jatinder Singh Sahota". 10The matter was adjourned and came back before Magistrate Still on the 27 August, 2013. At that stage the first plaintiff appeared and there developed a bizarre argument about who he was and who he had purported to be. That argument commenced with the first defendant's solicitor saying: "There is a gentleman in the back of the court room. He appears in this matter as the respondent to our motion but the issue that we have is that during our original civil claim proceedings which was before this court the same gentleman appeared and represented himself as being Kamal Chabra (as recorded), the actual defendant. He now stands before the court saying he is not Kamal Chabra, he is Jatinder Sahota". The Magistrate responded, "Yes, well that's a good start". 11The first plaintiff denied being the nominated defendant and denied that he had ever held himself out to be that person. By that time the solicitor for the first defendant had undertaken some detective work by attending the then defendant's business premises and making enquiries as to the owner/manager and the identity of the defendant. The solicitor provided an affidavit and gave evidence that they were one and the same person. An employed solicitor also swore an affidavit which supported that contention. Mr Sahota swore an affidavit denying such malfeasance. 12There was an argument over whether the matter should proceed on that day. The first plaintiff sought an adjournment to obtain legal representation. The adjournment application was refused. Evidence was taken from both the solicitor for the first defendant and the employed solicitor of his law firm as well as from the first plaintiff. The cross-examination of the first plaintiff was directed to who he was, who he had held himself out to be, and whether he was either the original defendant or the man standing behind the company nominated in the garnishee order as the garnishee. Part way through the cross-examination of the first plaintiff he is recorded as saying: "This is irrelevant your Honour, okay. I have to go please, you know, I am sorry, sir, I mean I can't take this any more". 13It appears that the first defendant at that point refused to be further cross-examined. This places the status of any evidence he gave into question. The magistrate proceeded to make the following orders: (1)Judgment of $22,886.86 be entered in favour of the judgment creditor against the respondent, Roma Gallery Pty Limited and against Jatinder Singh Sahota, also known as Tony Sahota; (2)The respondent to pay the judgment creditor's costs in the motion in the sum of $2,000 and there was 28 days given to pay. 14It is against those orders that the current summons is directed. It was implicit in the Magistrate's orders that he formed the opinion that the defendant in the Local Court and Mr Sahota were one and the same person and that Mr Sahota was also the person behind the company nominated as the garnishee. In effect he made an order amending the name of the garnishee and then entered judgment against both the originally nominated garnishee and against Mr Sahota. 15In those circumstances and against that background the first plaintiff brought the current proceedings and, apart from attending some call overs and filing some documents, has failed to prosecute them. It seems that he has not served the third defendant (the Local Court) or the second defendant (who on one view is himself). He has not filed submissions in accordance with the Registrar's directions. He has not appeared today. His solicitor does not answer either his land line or mobile telephone. Meanwhile the first defendant has been attempting to obtain the return of the money it paid for furniture that was never delivered since 2011. 16In those circumstances there is no doubt in my mind that the power under rule 12.7 should be exercised. Mr Paterson, who appears for the first defendant with exemplary restraint, has sought indemnity costs from 31 July, 2014 and I am persuaded that the circumstances warrant such an order being made. Mr Paterson also seeks an order setting aside a stay of execution of the judgment ordered by the Local Court on 3 October 2013. 17Accordingly I make the following orders: (1)The summons (and associated appeal) is dismissed; (2)The plaintiff is to pay the defendant's costs up to 31 July, 2014 on the usual basis; (3)The plaintiff is to pay the defendant's costs from 31 July, 2014 until today on an indemnity basis. (4)The orders (for stay) made by the Local Court on 3 October, 2013 are set aside. ********** Amendments 21 August 2014 - para 16 clarification 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. Decision last updated: 21 August 2014