Jeffrey Blume v Rocco Pirrotta [2014] NSWCATCD 243

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Jeffrey Blume v Rocco Pirrotta [2014] NSWCATCD 243 Hearing dates: 17 November 2014 Decision date: 19 December 2014 Jurisdiction: Consumer and Commercial Division Before: M Eftimiou, General Member Decision: The orders made by the Tribunal on 13 June 2013 in matter MV13/27052 are set aside. The application is dismissed Catchwords: Fair Trading Act 1987: Due Care and Skill Legislation Cited: Fair Trading Act 1987 Bankruptcy Act 1966 Category: Principal judgment Parties: Jeffrey Blume (applicant) Rocco Pirrotta (respondent) Representation: Both parties in person File Number(s): MV 13/48826 Publication restriction: Unrestricted

reasons for decision 1. By application filed on 21 May 2013, the applicant sought an order that the respondent pay him $16,500.00; and that the respondent replace parts to his motor vehicle to the value of $3,400.00. 2. On 13 June 2013 the Tribunal heard the matter in the absence of the respondent. The Tribunal made an order in the matter MV 13/27052 that the respondent pay to the applicant $19 500.00. 3. On the 27 June 2013, the respondent sought a rehearing of the matter. On 31 July 2013, the operation of the order for payment of money made on 13 June 2013 was stayed. On 13 September 2013, the Chairperson's delegate directed that the matter number MV 13/27052 be reheard as the Chairperson's delegate was satisfied that the respondent may have suffered a substantial injustice. 4. The matter next came before the Tribunal on 10 October 2013. By consent of the parties the matter was adjourned as the parties sought an opportunity to negotiate a settlement without the assistance of the Tribunal. 5. On 7 November 2013 the matter was again adjourned by consent of the parties, to enable (a) a joint inspection of the vehicle to take place;(b) the parties to determine the severity of the damage- mechanically and body wise and (c) the parties to determine the options to repair, extent and costs both mechanically and body wise. 6. On 6 February 2014, the matter was again before the Tribunal. There was no appearance by the respondent. The respondent had sought an adjournment on the basis that he was the Carer of his wife who has a medical condition. The applicant advised the Tribunal on 6 February 2014 that the matter had not settled. The Tribunal determined that the matter should be adjourned for a formal hearing and procedural directions were made for the exchange of evidence. 7. On 3 March 2014 the respondent advised the Tribunal that he had become a Bankrupt on 21 February 2014. 8. On 21 March 2014 the Tribunal wrote to the applicant advising him that the Registrar had received information from the respondent that he had become a Bankrupt. The applicant was advised that subject to the Bankruptcy Act 1996 he may not be able to proceed with the claim in the NSW Civil and Administrative Tribunal without the leave of the Trustee in Bankruptcy. The applicant was encouraged to seek independent legal advice. 9. On 31 March 2014 the matter again came before the Tribunal and the applicant was again advised that as a result of the respondent entering bankruptcy the Tribunal may not have jurisdiction to hear and determine the matter. The matter was adjourned and the parties were given an opportunity to make written submissions on the question of the Tribunal's jurisdiction to hear and determine the matter. 10. The matter came before the Tribunal on the question of Jurisdiction on 19 May 2014. After submissions from the applicant it was determined by the Tribunal that the matter could not proceed without the leave of the Court. Section 58(3) of the Bankruptcy Act, provides that a creditor cannot take fresh steps in legal proceedings already commenced against a person who becomes bankrupt without leave of the Court. The Tribunal is not a Court and cannot grant leave of its own volition. The Tribunal found that the applicant needed to consider whether or not he seeks to obtain leave of the Court to continue with these proceedings. The Tribunal did not dismiss the proceedings, because to do so would have created a limitation problem should the applicant seek to file fresh proceedings with the Tribunal. The Tribunal further stated that if the applicant sought to obtain leave of the Court, and if that were to be granted then these proceedings may continue. 11. On 17 July 2014 the matter was adjourned at the request of the applicant as he had filed an application on 16 July 2014 with the Federal Court seeking leave to proceed in the Tribunal with the matter. 12. On 14 August 2014 the Tribunal made the following procedural directions: 1. The proceedings are removed to Sydney registry. 2. It appears the application cannot be maintained as the Respondent is bankrupt and the claim is a provable debt. In this event the application should be dismissed: see Reasons of Member Sarginson of 19 May 2014. 3. The matter is listed for hearing on 8 September 2014 at the Sydney Registry to consider whether the application should be dismissed. 4. The parties are to file with the Registry and serve upon each other any further submission on the issue of dismissal on or before 1 September 2014. 1. On 26 August 2014 the Federal Circuit Court of Australia made the following orders: 1. Under section 58(3)(b) of the Bankruptcy Act 1966(Cth), to the extent that the claim by the applicant in New South Wales Civil and Administrative Tribunal (NCAT) proceedings MV13/48826 in in respect of a provable debt, leave is granted to both the applicant and the respondent to take such steps in the NCAT proceedings will enable that proceedings to be finalised. 2. The leave granted by Order 1 of these orders is subject to the condition that no steps be taken by the applicant to enforce any decision of NCAT in the proceedings without leave of this Court. 1. On the basis of the Orders made by the Federal Circuit Court of Australia on 4 September 2014 the Tribunal determined that the matter should proceed to hearing. 2. On 3 November 2014 the Tribunal advised the Official Trustee in Bankruptcy that the matter was set down for a formal hearing on 17 November 2014. 3. On 10 November 2014 the Tribunal advised the parties that it proposed to join the Trustee, Australian Financial Security Authority to the claim, as it appeared that the claim in the present circumstances would be a provable debt in the Bankruptcy of the respondent. 4. On 12 November 2014 the Tribunal received correspondence from the Australian Financial Security Authority advising that they opposed any proposed order to join them to the proceedings. It was submitted that the proceedings are a matter between the applicant and the respondent and the Official Trustee takes no part in same. 5. After consideration of this correspondence, the Tribunal determined that the Official Trustee would not be joined as a party to the proceedings. 6. Both parties appeared before the Tribunal on 17 November 2014. Both parties advised the Tribunal that they were ready to proceed to hearing and that they had complied with procedural directions of the Tribunal. 7. A summons had been issued at the request of the applicant on 21 March 2014. The summons was addressed to the Proper Officer NSW Department of Fair Trading. The documents requested under summons had been provided however it became apparent that no orders as to access to the documents had been made by the Tribunal. 8. The matter was adjourned for a short period and the Tribunal gave access to the documents produced under summons first to the respondent. Access was then given to the applicant. Both parties advised the Tribunal that they were ready to proceed to hearing and there was no material in the summons documents that caused them any difficulty in proceedings. 9. The crux of the applicant's case can be summarized as follows: * The applicant took his 1970 VG Valiant Motor vehicle to the respondent in November 2007 for repairs. * The applicant paid the respondent over a period of time the sum of $16,100.00 in relation to the work. * The applicant collected the vehicle from the respondent's premises in December 2011. * The applicant claimed that the repairs were not carried out with due care and skill, the work is incomplete and the respondent has damaged the body of the vehicle. * The applicant seeks a refund of the $16,100.00 he has paid to the respondent, together with $3,400.00 for the cost to replace parts that the respondent has removed and were missing from the vehicle, together with the cost of repair to the body of the vehicle. * The applicant now seeks an order for $30,000.00. 1. The respondent's case can be summarized as follows: * The parties were friends prior to this dispute. * The respondent agreed to do some work together with the applicant on the vehicle. This agreement was reached sometime in 2007. * A sum of $ 13,300.00 was paid to him for the work. There was no agreed amount as to the total cost of the work. * The vehicle was returned to the applicant in December 2011. * The respondent denies that any parts were missing when the vehicle was returned to the applicant. * The respondent concedes that the work is not complete. * The respondent denies damaging the body of the vehicle. 1. The issue for the Tribunal to determine is whether the respondent has breached the Fair Trading Act 1987 as it existed at the time of the Contract between the parties. This is mirrored in section 74 of the Trade Practices Act 1974. The contract was entered into between the parties prior to 1 January 2011 and the Australian Consumer Law only applies to contracts entered into after this time. In every contract for the supply in the course of a business of services to the consumer there is an implied warranty that the services will be rendered with due care and skill and that any material supplied in connection with those services will be reasonably fit for the purpose for which they were supplied. 2. In support of the claim the applicant seeks to rely on amongst other documents, the following: 1. A number of photographs; 2. Three receipts for the payment of $13 300.00. 3. A letter from Russel Dyball , the applicant's step father; 4. Confirmation of registration of the vehicle. 5. An unsigned report from Andrew Shipard, licensed mechanic and photos attached to his report; 6. An invoice from the respondent dated 1 June 2007; 7. An invoice from Respondent dated 10 July 2009; 8. Quotes to replace the missing parts; and 9. Quote to repair body work on the vehicle. 1. The respondent provided a number of photographs of the vehicle being collected from his workshop in December 2011. 2. The Tribunal is satisfied that it has jurisdiction to hear and determine the matter pursuant to the Consumer Claims Act. The application was filed with the Tribunal in May 2013. The Tribunal is satisfied that section 7 of the Consumer Claims Act is satisfied. 3. The Tribunal makes the following findings.