Supreme Court New South Wales Medium Neutral Citation: Sattar v Boral Constructions Materials Group Limited [2018] NSWSC 196 Hearing dates: 15 February 2018 Date of orders: 28 February 2018 Decision date: 28 February 2018 Jurisdiction: Common Law Before: Harrison AsJ Decision: The Court orders that: (1) The amended summons filed 9 October 2017 seeking to appeal the decision of his Honour Curran LCM dated 11 August 2018 is dismissed. (2) The plaintiff is to pay the defendants' costs of the proceedings on an ordinary basis. Catchwords: PROCEDURE – whether the plaintiff's amended summons ought to be dismissed on grounds of incompetency – whether amended summons and proceedings ought to be dismissed pursuant to UCPR 13.4 – whether further opportunity to replead summons would allow for the identification of any arguable points of law or any points of mixed law and fact – leave to replead summons refused – amended summons dismissed Legislation Cited: Local Court Act 2007 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: B & L Linings Pty Limited & Anor v Chief Commissioner of State Revenue (2008) 74 NSWLR 481; [2008] NSWCA 187 Sayed v Deng [2012] NSWSC 851 Swain v Waverley Municipal Council [2005] HCA 4; (2005) 220 CLR 517 Category: Procedural and other rulings Parties: Qamar Jahan Sattar (Plaintiff) Boral Construction Materials Group Limited (First Defendant) Boral Resources (NSW) Pty Ltd (Second Defendant) Representation: Counsel: M Condon SC with L Fermanis (Defendants) Solicitors: Self Represented (Plaintiff) Holman Webb Lawyers (Defendants) File Number(s): 2017/272474 Publication restriction: Nil Judgment 1. HER HONOUR: By notice of motion filed 23 October 2017, the defendants seek orders that firstly, pursuant to Rule 50.16A of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), the amended summons filed 9 October 2017 be dismissed as being incompetent; secondly, in the alternative, pursuant to UCPR 13.4 the amended summons and the proceedings be dismissed; thirdly, in the alternative to orders 1 and 2, the notice to produce served by the plaintiff dated 13 October 2017 be set aside. The defendants are also seeking an order for security for costs that will need to be determined, should the amended appeal not be summarily dismissed. 2. The plaintiff is Qamar Jahan Sattar. The first defendant is Boral Construction Materials Group Limited. The second defendant is Boral Resources (NSW) Pty Ltd. For convenience, I will refer to the plaintiff as Ms Sattar and the first and second defendant collectively as Boral except where otherwise stated. 3. The plaintiff relied upon her affidavits dated 7 September 2017 and 7 October 2017 and five court books. The defendants relied upon two affidavits of Andrew Tanna filed 23 October 2017 and 15 February 2018 and two court books. The plaintiff appeared and was not legally represented. Mr Condon SC appeared for the defendants. Background 1. Ms Sattar was involved in developing a building site at Punchbowl. On 5 March 2014, she was issued with an owner/builder's permit by the Department of Fair Trading for the work to be performed on the building site. Ms Sattar required liquid concrete for the purposes of laying a slab to be delivered to the building site. She approached Boral in relation to the supply of the concrete. 2. On 11 August 2017, Magistrate Curran (the Magistrate) ordered that Ms Sattar pay the plaintiffs the sum of $39,364.27. His Honour also made orders in relation to the claim and cross claim and interest. The appeal 1. Section 39(1) of the Local Court Act 2007 (NSW) provides that a party who is dissatisfied with a judgment or order of the Local Court may appeal to the Supreme Court, but only on a question of law. 2. Section 40(1) of the Local Court Act provides that a party who is dissatisfied with a judgment or order of the Local Court may appeal to the Supreme Court on a ground that involves a question of mixed law and fact, but only by leave of the Supreme Court. In other words an appeal under s 40(1) must be predicated upon "an identified question of law or an erroneous answer in respect of a question of law: see B & L Linings Pty Limited & Anor v Chief Commissioner of State Revenue (2008) 74 NSWLR 481; [2008] NSWCA 187 at [75] per Allsop P and [150] per Basten JA. 3. Section 41(1) of the Local Court Act provides that this Court may determine an appeal either (a) by varying the terms of the judgment or order, or (b) by setting aside the judgment or order, or (c) by setting aside the judgment or order and remitting the matter to the Local Court for determination in accordance with the Supreme Court's directions, or (d) by dismissing the appeal. 4. In Swain v Waverley Municipal Council [2005] HCA 4; (2005) 220 CLR 517, Gleeson CJ at [2] reiterated that in the common law system of civil justice, the trial process determines the issues between the parties. The system does not regard the trial as merely the first round in a contest destined to work its way through the judicial hierarchy until the litigants have exhausted either their resources or their possibilities of further appeal. In essence, Ms Sattar seeks to reagitate unfavourable factual findings that were made in the Local Court. Amended summons 1. On 9 October 2017, Ms Sattar filed an amended summons. She appealed on the grounds of "harassment and defamation under privacy law, unfair and unjust contract pursuant to Australian Contract Law 2010, evidence in error pursuant to Evidence Law 2005, the good faith, duty of care and negligence and corporate Law 2001, harassment, misleading misrepresentation and for realising information for plaintiff Defamation Law, UCPR law s 6 to found the answers for all questions of law and she complains about Boral placing a caveat on the wrong and unrelated property". 2. In her document entitled "Supreme Court Pleading and Particulars", Ms Sattar makes numerous complaints about the Magistrate, including that the Magistrate "diverted the text messages in plaintiff favour and accused to defendant that that message sent by defendant knowing that message was in receiving box not in sending box, his honour did not look that message which was clearing the point in cross examine when and how the order time changed but his Honour accused to defendant and stop cross examine Una Hatem." 3. Ms Sattar seeks damages in the sum of $545,000. The pleading framework in the Local Court 1. I shall briefly set out the pleadings in the further amended statement of claim and amended defence. Ms Sattar filed a cross claim against the defendants but withdrew it during the hearing. Further amended statement of claim 1. On 29 January 2016, Boral filed a further amended statement of claim. Boral alleged that no payments had been made in respect of the sum of $39,364.27 for the materials and goods provided. 2. Boral alleged that it was a term of the agreement that Ms Sattar would pay the Boral by the due date, without any reduction or setoff, the price charged for goods supplied to the defendant. 3. Further, it was a term of the agreement that Ms Sattar would pay the Boral on a full indemnity basis all costs incurred in connection with the enforcement of the agreement and pursuant to that term and condition the Boral claim the amount of $32,109.75 as at 29 January 2016. 4. In the alternative, Boral asserted that it is entitled by way of quantum meruit to the payment in the sum of $39,364.27 in respect of the goods supplied by Boral to Ms Sattar, plus interest. Amended defence 1. The amended defence is difficult to fully understand. Doing the best I can, Ms Sattar pleaded that Boral submitted a registration of a Boral business and that she did not sign an agreement. The ABN and ACN numbers were not shown and explained to her before she signed the agreement with them. 2. Her main complaints appear to be that Boral supplied the concrete before confirming with her the time she wanted the concrete to be delivered, which was 8.30 am on 22 October 2014; Boral changed the time of the delivery without informing her; increased the quantity of concrete without her authorisation; passed on her information, her name, address and account details, accepted signatures on the delivery dockets by other persons without her authorisation; she was not informed by Boral's delivery drivers to sign delivery dockets after accepting delivery as an account holder, which was the condition of supplying of concrete; Boral did not issue tax invoices in time and did not attempt to solve the problem even after she had informed the manager of her dispute; and Boral did not inspect the site which the sales lady had promised they would. Ms Sattar says that because of all of these problems she could not practice her right to cancel the supply of the concrete at 9.30 am because the final confirmation time for her to do so was an hour before the truck left Boral at 8.30 am. To date, Ms Sattar says that Boral has not released the information as to how, when and who changed the delivery time of the concrete. The proceedings in the Local Court 1. On 23 June 2016, the hearing commenced before the Magistrate in the Local Court, Downing Centre and continued on 21, 22, 23 September 2016 and 18, 19 and 26 May 2017, a period of seven days. 2. At the hearing the Magistrate summarised the facts that were not in dispute. They are: 1. Ms Sattar had a discussion with Lina Hatem who was an accounts manager with Boral Limited and its related bodies corporate. 2. Discussions took place between Ms Sattar and Ms Hatem and a price for the supply of the appropriate concrete was negotiated. 3. The figure agreed to was $191 per cubic metre. 4. The quantity initially, to be supplied, was agreed at 90 cubic metres. 5. There was no issue that before the supply could be made, Ms Sattar was required to fill in a credit application form, so that an account with Boral could be set up. To set up this account a document headed "Credit Application Form" had to be filled in. Ms Sattar did in fact fill out the form and it was subsequently approved by Ms Hatem on 14 October 2014. Ms Sattar was also required to sign a document headed "Personal Guarantee and Indemnity Agreement" which she did. 6. The liquid concrete was delivered to the building site on 22 October 2014 and the total delivered was 182.70 cubic metres. 7. The deliveries to the building site commenced at 7.12 am and continued until shortly after 8.00 pm that day. 8. There is no evidence contrary to Boral's evidence that the value of the concrete that was delivered was the sum of $39,364.27. This was set out in the three tax invoices dated 23 October 2014 (annexed to the affidavit of Fernando Caligiore dated 4 October 2015). Mr Caligiore was the National Credit Manager of Boral Limited and its related companies. However, on this appeal, Ms Sattar complained that Mr Caligiore, as credit manager for Boral Limited and related companies, did not have sufficient knowledge about the invoices so he could not give that evidence. 1. Before I deal with the delivery of the concrete, Ms Sattar has alluded to the different corporate names of Boral. She submitted that Boral should have explained the ABN and ACN numbers of Boral and its associated entities. On this topic, the Magistrate at [7]-[10] had this to say: "7. I now turn to the issues between the parties and the resolution of factual matters associated with these issues. 1. WHICH DOCUMENTS WERE FORWARDED TO THE DEFENDANT AND RETURNED TO BORAL THAT FACILITATED THE SETTING UP OF THE ACCOUNT, WHICH WAS PREREQUISITE TO ANY CONCRETE BEING DELIVERED. The defendant accepts that she received the document headed "Credit Application Form" from Lina Hatem. She says she received it on or about 10 October 2014. She says she read the document and signed it and returned it to Hatem on or about 14 October 2014. She denies she ever received an email from Hatem on 15 October 2014 that attached a quote for the job together with a document headed "Summary of Standard Conditions of Sale and Delivery". She accepts that she did receive an email from Hatem on 16 October 2014 and at 12.12 pm which said as follows:- "Please contact Boral on 1300 522555 to place order". Prior to this she says she was contacted by Hatem to confirm that the account was opened, this occurring on 14 October 2014. Examination of Section 4 of the account associated with the setting up of the account resolves the issue of the entity or entities that can bring a claim such as the one that is before the court. The account was opened with Boral Limited, "and its related bodies corporate". In Part 4 of the application, under Part 1, "Related Bodies Corporate" has the same meaning as in the Corporations Act. Section 50 of the Corporations Act says as follows:- 50. Related Bodies Corporate Where a body corporate is: a) a holding company of another body corporate; or b) a subsidiary of another body corporate; or c) a subsidiary of a holding company of another body corporate; The first- mentioned body and the other body are related to each other. 8. In the Affidavit of Mr Fernando Caligiore that I have referred to above, dated 14 October 2015, there is exhibited at Annexure 1, a number of ASIC company searches. 9. Commencing at Page 1 of the Annexure is the search of Boral Construction Materials Group Limited. This continues for a number of pages, but at Page 10 it states that the Ultimate Holding Company is Boral Limited. Boral Construction Materials Group Limited (the first plaintiff) is therefore a related body corporate to Boral Limited. In the search of Boral Resources (NSW) Pty Limited, the second plaintiff, at Page 4 it also states that the Ultimate Holding Company of this corporate is Boral Limited. Further at page 10 it states that Boral Construction Material Pty Ltd is the current shareholder of Boral Resources (NSW) Pty Limited. Therefore the first and second plaintiffs are related corporate bodies to Boral Limited. It follows that a contract between the defendant and Boral Limited, if this is what the defendant believed, to set up the credit account would be an account that would relate to both of the plaintiff companies, they, as I have said, being related bodies corporate. 10. When the delivery documents are examined, (Exhibit 10 of the Affidavit of Caligiore) together with the invoices (Exhibit 8 of the same affidavit) it is apparent that the corporate entity supplying the concrete was Boral Resources (NSW) Limited and that in this delivery this corporation was acting as agent for Boral Construction Material Group Limited, the supplier of the concrete. I also note the definition of "Supply Terms and Conditions", which would allow reference to the delivery documents and invoices. I would conclude on the evidence that both plaintiffs had the status to sue the defendant, for the unpaid monies, the first plaintiff as the supplier of the concrete and the second plaintiff as agent for the first plaintiff in the delivery of the concrete." 1. Mr Frank Caligiore was in a position to give the evidence he did. The Magistrate referred to the statutory provisions and analysed the delivery document and invoices. His Honour has carefully dealt with the issue of the identity of Boral's entities in detail and there is no error in his approach. 2. Later in his reasons, the Magistrate set out Ms Sattar's allegations in relation to the timing and the delivery of liquid concrete. He analysed the competing evidence including the recorded conversation, primarily with Ms Hatem before arriving at his conclusion. Mr Nasr gave evidence that did not corroborate Ms Sattar's evidence. Mr Nasr, a concreter, maintained that Ms Sattar authorised him to receive the deliveries of concrete. This is corroborated in a recorded message of Boral. 3. In his reasons for decision, the Magistrate made findings in relation to the delivery of concrete and Mr Nasr's authority to receive it. His Honour stated at [56] and [57]: "56 This claim is between the Boral entities that I have referred to and Ms Sattar. It centres on the arrangements associated with the deliveries. There is no issue as to the arrangements for the delivery. The concrete was to be delivered following an initial call one hour before the first delivery. Thereafter the deliveries would be about 24 minutes apart. This is the part of the contract between Boral and Ms Sattar associated with the actual performance of the contract. However, it is apparent there are certain things that can be concluded on the evidence and that I find to be matters of fact on the balance of probabilities. 1) Initially the delivery was to be for 90 cubic metres of a particular quality of concrete, described as 32/20. 2) The delivery was to take place on 22 October 2014 at the Punchbowl building site. Although the time was set for the first delivery at 9.30, with a confirming call at 8.30, it was made clear to Boral by Ms Sattar that she would like to have an earlier delivery time if possible. 3) The order was for 90 cubic metres but with provision being made for a possible increase, depending upon need. This increase was to be made known to Boral, if and when required, by a telephone call. 4) Boral was told that the person who would make the calls was "the concreter". The identity of this person was not specified, except in the call on the 16 October, referred to above, it was suggested it would be someone other than Ms Sattar. 5) The quantity of concrete in fact delivered on 22 October was 182.70 cubic metres. The deliveries were made following telephone requests by Mr Nasr. 6) Who signed the documents for the deliveries is not clear on the evidence. Ms Sattar says she did not sign as she was not on the site to do the signing. Mr Nasr says that she was on the site and did do the signing and if she didn't do it the male that was present with her did it. He is adamant that he did not do any signing. Given the conflict of evidence, the court cannot decide who signed for each of the deliveries, but it is noted that someone did sign for most of the deliveries but that person remains unidentified on the evidence. 7) The total amount owing for the concrete being delivered was $39,364.27 (agreed at the rate of $191 per cubic metre). 57 What has to be kept in mind is that this case is based on a dispute between the Boral Corporate entities and Ms Sattar. It is obvious that Boral delivered on the basis agreed, that is, on telephone calls being made in relation to the start of the deliveries and subsequent communications as to increases in the amount to be delivered. They were to be from the concreter. This is exactly what was done, those calls, coming from Mr Nasr, a concreter. Given the evidence, there is certainly a dispute in relation to what Ms Sattar says and what Mr Nasr says. In this regard Ms Sattar says she was to make the calls herself. Mr Nasr says it was delegated to him by Ms Sattar that he indeed should make the calls. Indeed he also says that he was delegated to increase the amount as needed. There may well be an issue between these two people and on the evidence, there most certainly is, but Boral was not privy to the arrangements between Ms Sattar and Mr Nasr in relation to the deliveries. Boral merely delivered on the pre-arranged basis namely, as indicated by the telephone calls from the concreter. This is in accordance with what the defendant had told Boral would occur during the telephone conversation at about 2pm on 16 October 2014. There is no issue that these calls took place and that all the deliveries were made in accordance with the telephone calls. Boral fulfilled their terms of the contract. The fact that there are real issues between Mr Nasr and the defendant is not the fault of Boral, especially as Boral knew absolutely nothing of the arrangements between Mr Nasr and Ms Sattar. Further there is the conversation at 8.40 on 22 October between Ms Sattar and Boral. There is obviously no indication in that telephone call of a problem with the deliveries that had taken place at that stage, Ms Sattar being advised of the commencement of the deliveries at a time somewhat earlier than 9.30, namely sometime shortly after 7am, [f there is an issue about the timing of these deliveries or the way the concrete was laid (which is not apparent on the evidence) that is a matter between Ms Sattar and Mr Nasr and does not involve Boral. As I have said Boral delivered the concrete in accordance with the pre- determined agreement, subject as it was, to both an earlier timing if available and the delivery of quantities in excess of 90 cubic metres if indicated. On the evidence it would seem that on the balance of probabilities Ms Sattar was not on the building site during the course of the day. It also seems apparent on the evidence the person who arranged the delivery of and supervised the pouring of the concrete was Mr Nasr. Any problems arising out of this are a matter for Ms Sattar and Mr Nasr. They have nothing to do with Boral." 1. As best I can, I have examined Ms Sattar's complaints. I am satisfied that Ms Sattar's complaints concerning the Magistrate's decision are not borne out. Ms Sattar has not raised any question of law, nor any question of fact and law, which could be considered as possibly arguable. Dismissal and incompetency 1. The defendants rely on UCPR 13.4(1) and Rule 50.16A. 2. UCPR 13.4(1) provides that the Court may dismiss proceedings generally, or in relation to any claim for relief, in three circumstances. These are, if the proceedings are frivolous or vexatious, or if no reasonable cause of action is disclosed, or if the proceedings are an abuse of the process of the Court. 3. UCPR Rule 50.16A refers to the objections to competency of an appeal. It reads: "50.16A Objections to competency of appeal (1) A defendant who objects to the competency of an appeal must, by notice of motion filed and served on all other parties to the appeal within 14 days after service on the defendant of the notice of appeal, apply to the court for an order dismissing the appeal as incompetent. (2) If the defendant fails to comply with subrule (1) and the appeal is nevertheless dismissed as incompetent: (a) the defendant is not entitled to costs of the appeal unless the court otherwise orders, and (b) the court may order the defendant to pay the plaintiff any costs of the appeal proving useless or unnecessary." 1. In Sayed v Deng [2012] NSWSC 851, Beech-Jones J discussed the requirements for leave pursuant to ss 39 and 40 of the Local Court Act. Beech-Jones J at [31]-[33] stated: "31 This concern as to protecting parties from the costs of appeals is also evident from three matters in s 39 and s 40 of the Local Court Act. 32 First, it is evident from the restriction imposed by s 39 confining appeals only to questions of law. Secondly, it is evident on the restriction on the extension of such appeals to mixed questions of law and fact that follows from the need to obtain leave under s 49(1). Thirdly, it is reflected by the restrictions on leave imposed by s 40(2). 33 The Local Court has a limited monetary jurisdiction. Left unchecked, appeals from its decisions, especially interlocutory decisions, could lead to there being a significant risk that the overall costs of proceedings would be completely disproportionate to the matters in dispute." 1. It is my view that Boral is entitled to have the summons dismissed pursuant to UCPR 13.4 and UCPR Rule 50.16A. Ms Sattar was given a sufficient opportunity to identify any arguable points that could conceivably or properly found a grant of leave to appeal pursuant to s 39 of the Local Court Act, and to identify a question of law. She failed to do so. The appeal is incompetent. 2. In the exercise of my discretion, I take into account the lack of proportionality between the judgment entered against Ms Sattar and the amount of legal costs and court time expended; even if Ms Sattar was given a further opportunity to replead her grounds of appeal, it is my view that there is no likelihood that she would be able to articulate an arguable question of law or mixed questions of fact and law. Hence, I refuse leave for Ms Sattar to replead the summons. 3. In light of this decision, it is not necessary to deal with Boral's alternative application for security for costs. Further, for completeness, this Court cannot deal with the caveat issues as they were not matters that the Magistrate had to deal with, nor are they matters that can be raised on appeal. 4. The result is that I dismiss the amended summons filed 9 October 2017. As the proceedings have been dismissed, I set aside the notice to produce dated 13 October 2017 served by Ms Sattar. Costs 1. Ms Sattar submitted that she should not have to pay costs as she has no money. This is not a sufficient reason to displace the usual order for costs. 2. Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the defendants' costs of the proceedings on an ordinary basis. The Court orders that: (1) The amended summons filed 9 October 2017 seeking to appeal the decision of his Honour Curran LCM dated 11 August 2018 is dismissed. (2) The plaintiff is to pay the defendants' costs of the proceedings on an ordinary basis. ********** 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: 28 February 2018