Srinivas and Deepti Nayak v Rockwall Constructions Pty Ltd [2015] NSWCATCD 80

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Srinivas and Deepti Nayak v Rockwall Constructions Pty Ltd [2015] NSWCATCD 80 Hearing dates: 11 June 2015 Decision date: 24 July 2015 Jurisdiction: Consumer and Commercial Division Before: J A Ringrose, General Member Decision: 1. The application is dismissed pursuant to the provisions of s 55(1)(d) and Sch 4, Pt 5, Cl 10 of the Schedule to the Act. 2. The applicants are to pay the respondents' costs of the application as agreed or assessed in accordance with the Legal Profession Act 2004. Catchwords: Dismissal for want of prosecution of the proceedings – proceedings conducted in such a way as to unreasonably disadvantage the other party in the proceedings. Legislation Cited: Civil and Administrative Tribunal Act 2013 s 55, Sch 4, Pt 5, cl 10 Cases Cited: Minister for Immigration and Multicultural Affairs, v Bhardwaj (2002) HCA 11 Cameron v Cole (1944) 68CLR 571 at 589 Stollznow v Calvert (1980) 2 NSW LR 249 Category: Principal judgment Parties: Srinivas Nayak and Deepti Nayak (Applicants) Rockwall Constructions Pty Ltd (Respondent) Representation: Mr Dutt, Solicitor of Reuben George Lawyers appeared for the applicants. Mr Haaring of A.I. Legal appeared for the respondent. File Number(s): HB 14/44429 Publication restriction: Nil

REASONS FOR DECISION

BACKGROUND 1. By a home building contract dated 7 December 2012 the applicants engaged the respondent to carry out certain building works on their property at [****] Bella Vista at a total cost of $977,636.00. The price was later revised to $998,838.54 according to the applicants. 2. The respondent claims that work commenced on 5 February 2013 and was completed in June 2014 and that the applicants failed to pay a claim of $90,809.53 on or before 4 September 2014. 3. The applicants contend that the respondent terminated the contract pursuant to cl 26 thereof on 8 September 2014 and has failed to identify defaults on the applicants' part or provide a written notice that unless the alleged default is remedied the respondent intended to terminate the contract. 4. The applicants, through their solicitors, Reuben George Lawyers, filed the present application on 9 September 2014 claiming compensation in the sum of $500,000.00 being the completion costs for the contract in a sum of $537,699.00, together with damages for defective works in the sum of $30,000.00 and a refund of over payment in the sum of $187,731.80. The applicants appear to have conceded a reduction in their claim to the statutory limit of the Tribunal. 5. On 31 October 2014 the respondent herein filed a related cross-claim (HB 14/53291) seeking payment of a balance owing under the contract in the sum of $90,809.53. That balance was claimed to have been made up as; Contract sum - $977,636.24 Variations in the sum of $127,440.86 less deposits $10,000.00, less progress payments $612,318.57 less variations 1-4 $40,000.00 less unused drawdowns $351,949.00. 1. The present matter was initially listed before the Tribunal on 4 November 2014 when the following orders were made; 1. Hearing adjourned to a date to be fixed by the Registrar. 2. The owners claim seeks damages for defective and incomplete work well in excess of the jurisdiction or limit of the Tribunal possibly as high as 1.3 million and the parties may provide written consent orders transferring both matters (the owners and builders claim) to a court of competent jurisdiction and the orders may be made in chambers. Such written consent orders shall be provided to the Registrar no later than 18 November 2014. 3. In the event that order 2 above is not complied with, the matter may be transferred by order of the Tribunal on the next occasion. 4. In the event that the applicant can satisfy the Tribunal that the claim is reduced to the jurisdiction limit, the respondent builder reserves its right to file an amended cross claim. 1. When the matter was listed before the Tribunal for directions on 16 December 2014 the Tribunal noted that the home owners claimed $537,000.00 but submitted to the jurisdiction a limit of the Tribunal. It was noted that the home owner had filed and served all expert and lay evidence upon which they sought to rely and that the builder was required to serve all expert and lay evidence by 30 January 2015. The builder sought leave to amend its cross claim to include a loss of profit and the amendment was to be fully particularised before 23 January 2015. The home owner was directed to file and serve all documents in defence to the cross claim by 13 February 2015 and leave was granted to both parties to be legally represented. 2. On 23 January 2015 the parties agreed upon consent orders in the following terms; 1. The home owners to file their amended application, fully particularising their claim and to advise the builder of the sections of the report by Hugh B. Gage they no longer rely on by 6 February 2015. 2. The builder to file and serve its amended cross claim, lay and expert evidence they seek to rely on in their cross claim and in defence to the home owners claim by 13 March 2015. 3. The home owners to file and serve all documents they seek to rely upon in defence of the cross application (HB 14/53291) by 27 March 2015. 4. On or before 3 April 2015 all experts are to meet and file a joint expert reports or reports (or combined Scott Schedule as appropriate) setting out the areas of agreement and disagreement and any reasons for those disagreements including references to the experts reports previously filed and served. 5. Directions herein listed for 10 March 2014 to be adjourned to a date after 27 March 2015. The consent orders sought by the parties were made by the Tribunal on 5 February 2015. 1. The matter was listed for further directions on 21 April 2015 when neither the applicants nor their legal representatives appeared and the solicitor for the respondent claimed that the applicant had failed to comply with direction (1) made on 5 February 2015 and had failed to respond to attempts to contact their representative made by the respondents' solicitors. The Tribunal made the following orders on 21 April 2015; 1. The Hearing is adjourned to a date to be fixed by the Registrar. 2. The Tribunal notes that the applicant has failed to comply with direction (1) made on 5 February 2015 and has failed to respond to attempts to contact their representative made by the respondents' solicitor. 3. The applicant/applicants' representative is to file and serve an affidavit setting out the reasons direction (1) made on 5 February 2015 has not been complied with and the steps taken to comply with the Tribunal direction since 5 February 2015 together with submissions addressing why the application should not be dismissed pursuant to s 55 (1)(d) or Schedule 4, Clause 10(1) of the Civil and Administrative Tribunal Act 2013 by 1 May 2015. 4. The respondent shall file and serve any evidence and submissions in response by 15 May 2015. 5. A show cause hearing will be listed not before 18 May 2015. 6. If the applicant does not comply with direction (3) above this application may be dismissed on the next occasion. 1. A copy of those orders were sent on 21 April 2015 to the applicants, care of their solicitors at the address for service which had been previously advised, namely Suite G 08/29-31 Lexington Drive Bella Vista NSW 2153. 2. On 5 May 2015 notice of a hearing to show cause listed for 11 June 2015 was forwarded to the applicants' solicitors at their postal address and via email. 3. By a letter dated 5 May 2015, Mr Reuben George contacted the Registry indicating that the firm had just received a notice of hearing by email stating that the matter was listed for show cause on 11 June 2015. He noted that the matter was listed for directions on 21 April 2015 and that orders were made in the absence of the applicant. He claimed that the solicitors did not appear on 21 April 2015 because they did not receive a notice that the matter was listed for directions. He claimed that the notice of orders made on 21 May were first received in his office on 5 May 2015. The letter continued; "We confirm that we have now received and considered the orders made on 21 May (stet) 2015. To avoid unnecessary costs and delay in the proceedings we respectfully seek the indulgence of the Tribunal for an extension of 7 business days from today to comply with Order 3. Given the above we respectfully submit that an opportunity for the applicant to comply with Order 3 and provide submissions is in line with keeping the jurisdiction just, quick and cheap." 1. An acknowledgement of the receipt of that request was forwarded both by email and by post to the applicants' solicitors on 15 May 2015 and they were advised that a written response from the builder was required by 18 May 2015 and that the timetable would remain unchanged unless the Tribunal advised that it had been amended. 2. It is significant to note that the 7 business days originally requested by the applicants' solicitors on 5 May 2015 would have expired on 14 May 2015, before the communication was sent out from the Registry. It is also appropriate to note that by 15 May 2015 no amended application or particularised claim had been received from the applicants or their solicitors in compliance with Order 1 made on 5 February 2015. 3. On 18 May 2015 the solicitors for the respondent, Rockwall Constructions Pty Ltd wrote to the Tribunal detailing attempts to contact the respondents' solicitors between 4 March 2015 and 14 April 2015 and attaching a letter addressed to the applicants' solicitors notifying them of the directions hearing to be held on 21 April 2015. The letter of 14 April 2015 was forwarded to the applicants' solicitors at the post office box address referred to on their letterhead. 4. At 6.09pm on 26 May 2015 Mr Tarrone Dutt of Reuben George Lawyers forwarded a letter to the Registry of the Tribunal which bore the date 5 May 2015 but which, it is assumed was written after 22 May 2015 and probably on 26 May 2015. The letter noted in part; "On 22 May 2015 we telephoned the Registry and was informed that the respondent had not replied to the email. We note that we have contacted the Registry numerous times by telephone regarding the letter and the email and are yet to receive a response to our request. We have pursued our correspondence with the Tribunal with urgency as we are mindful that the matter has been listed for a Show Cause Hearing on 11 June 2015. At present the applicant is unsure if; (1) they have leave from the Tribunal to file and serve submissions and an affidavit to comply with Order 3 of the orders made by the Tribunal on 21 April 2015, in our absence and that the Show Cause Hearing has been adjourned or located, or; (2) if the applicant should proceed to prepare for the show cause hearing. Earlier this morning, the Registry informed us that the matter would be raised before a Tribunal Member today. We have not been informed of any outcome. In the event that a determination has not been made and in the interest to save time and costs we respectfully request that the Tribunal make a determination to our application outlined in the letter at the earliest opportunity". 1. The Tribunal records show that apart from the letter of 5 May 2015 which was forwarded at 7.23pm on that date that the Deputy Divisional Registrar had a telephone conversation with Mr Dutt on 26 May 2015, and the following notes of the conversation appear; "I advise that extension of time request would be forwarded to the Member today. I confirmed that submissions had not yet been received and sought a date by which Mr Dutt would comply. Mr Dutt stated that until the Tribunal provided a new compliance date, he should not be required to lodge submissions. I drew Mr Dutt's attention to the correspondence issued 5 May 2015 that confirms the timetable of 21 April 2015 remained unchanged unless advised. After much discussion Mr Dutt nominated compliance date of 7 days from today being 2 June 2015. 1. No material was received from the applicants or their solicitors either in relation to the orders made on 21 April 2015 or in relation to the orders made on 5 February 2015, by 2 June 2015. 2. The matter was listed for hearing on 11 June 2015 at 11.15am and whilst Mr Haaring for the respondent attended, Mr Dutt did not arrive at the hearing room until approximately 11.25am. At that stage no documents in compliance with any of the directions previously made had been received by the Tribunal. 3. Mr Dutt, on behalf of the applicants, conceded that he had not filed any documentation in the matter but claimed that he had available an affidavit and submissions addressing the matters required by direction (3) on 21 April 2015. He claimed that he had been a solicitor since 2012 and that he had carriage of the present matter since early April 2015. 4. Mr Dutt indicated that he did have 2 affidavits which had been sworn on 10 June 2015 but neither of which had been provided either to the Tribunal or to the solicitors for the respondent. 5. Mr Dutt claimed that he had been in constant contact with the Tribunal since 5 May 2015 although the Tribunal records show evidence of only very limited contact by email and by telephone since that time. 6. In seeking leave to rely upon the affidavits Mr Dutt did not provide any explanation as to why the material he now sought to tender had not been prepared by 14 May 2015 or by any time thereafter and he was unable to provide any explanation as to why he did not prepare these documents earlier and make a copy available to the solicitors for the respondent. 7. Mr Dutt conceded that he was aware that the respondents' solicitors were to be given an opportunity to reply to his evidence and submissions and he merely suggested that the show cause proceedings should be adjourned to afford them of that opportunity. 8. It was suggested to Mr Dutt that if the Tribunal saw fit to grant that opportunity that his clients or his firm might consider offering to pay the costs thrown away since 21 April 2015 either on a party party basis or on an indemnity basis. In response to that suggestion Mr Dutt indicated that neither he nor his clients would be prepared to offer to pay costs. 9. In all the circumstances and for reasons outlined below the matter proceeded without reference to the affidavit material which Mr Dutt sought to tender.