Islam v Javam 1147 [2019] NSWSC 1147

Supreme Court New South Wales

Medium Neutral Citation: Islam v Javam 1147 [2019] NSWSC 1147 Hearing dates: On the papers Date of orders: 05 September 2019 Decision date: 05 September 2019 Jurisdiction: Common Law Before: Harrison J Decision: No order as to costs Catchwords: COSTS – where an unnecessary appeal to this Court has been generated as the result of conduct by both plaintiff and defendant – no order as to costs Cases Cited: Islam v Javam [2018] NSWSC 1592 Islam v Javam [2018] NSWSC 1430 Category: Costs Parties: Sirajul Islam (Plaintiff) Abdollah Javam (Defendant) Representation: Solicitors: Somerville Legal (Plaintiff) Doyles Construction Lawyers (Defendant) File Number(s): 2018/145618 Publication restriction: Nil

Judgment 1. HIS HONOUR: These reasons assume a familiarity with my original decision in Islam v Javam [2018] NSWSC 1430. 2. On 22 October 2018 in Islam v Javam [2018] NSWSC 1592, I made the following orders: (1) I reserve the question of the costs of the plaintiff's appeal to this Court. (2) I direct the parties, if so advised, to provide written submissions on that issue to my Associate within 21 days following the publication of reasons for judgment in the Tribunal or settlement, whichever applies. (3) I grant liberty to apply on 7 days' notice to the Court and to the other side. 1. The decision of the Civil and Administrative Tribunal of New South Wales to which reference is made in order (2) above was delivered on 5 July 2019: see Islam v Javam [2019] NSWCAT. [The published decision of Senior Member D Goldstein with which I have been provided does not contain a medium neutral citation]. Written submissions from both parties were furnished in accordance with that order. 2. The burden of the submissions provided by the plaintiff is that he was required to appeal to this Court from the decision of the Local Court deciding that the Tribunal had jurisdiction to deal with all matters, because there was at least some remaining uncertainty that his claim for the sum of $20,000 lent to the defendant was justiciable in the Tribunal. The defendant's response was that it was clear from the Local Court decision, from his defence and from later comments made by the Tribunal member that the Tribunal had jurisdiction to consider the claim or, at the very least, that the plaintiff would be entitled to a credit for the $20,000 whatever else may have been decided with respect to the other issues raised on the plaintiff's claim and the defendant's cross-claim. 3. During the course of the hearing in the Local Court of the defendant's application to transfer the proceedings from that Court to the Tribunal, the plaintiff's legal representative made the following submissions: "My client's claim, which is the amended statement of claim, the initial claim that was filed on this was a debt claim and as a $20,000 loan. The defendant has come up with a defence to characterise it and somehow try and tie it to a home building contract. My submission is that by the defendant doing that, my client shouldn't be dragged into the Home Building Act just because the defendant wants to put a defence on that ties it to the Home Building Act. The initial claim was a neat personal loan case and that's not an NCAT matter. So that is another point we say why it shouldn't be transferred." 1. As will be apparent, the Local Court rejected that submission and made orders transferring the Local Court proceedings to the Tribunal. The plaintiff was at that stage the beneficiary of a decision of the Local Court that the Tribunal had jurisdiction to deal with his claim for $20,000. The defendant was a party to that determination. The plaintiff was therefore on one view the beneficiary of an issue estoppel that would have prevented the defendant from asserting or contending that the Tribunal was not armed with the power or the jurisdiction to do so. 2. Unfortunately, notwithstanding the Local Court decision, the Tribunal member before whom the proceedings first came for directions on 23 January 2018 raised the very issue of whether the Tribunal had jurisdiction to deal with the plaintiff's loan claim. Accordingly, on 6 March 2018, the plaintiff filed an application to transfer the proceedings back to the Local Court pursuant to Sch 4, cl 6(1) of the Civil and Administrative Tribunal Act 2013. On 23 April 2018, the Tribunal dismissed the plaintiff's application upon the basis that "the Local Court had conclusively determined that the Tribunal is the correct forum to determine both claims" and that "probably the only remedy open to the [plaintiff] is to appeal". 3. It will be immediately apparent that there is considerable tension between the last two quoted statements. If the Local Court had "conclusively" determined that the Tribunal was the correct forum, it is a little difficult to understand the reference to an appeal. 4. Be that as it may, the plaintiff submitted before me in these circumstances, after the Tribunal decision on 23 April 2018, that he had been forced to litigate in a forum without the power to adjudicate upon personal loan claim. He was therefore said to be left with three options: 1. Continue with the proceedings in the Tribunal with the prospect that his $20,000 personal loan claim would be struck out or dismissed at a final hearing for want of jurisdiction. 2. Withdraw the $20,000 loan claim and commence fresh proceedings in the Local Court. 3. Appeal from the Local Court decision to transfer the proceedings to the Tribunal. 1. The plaintiff maintains that the decision of the Local Court to transfer the personal loan proceedings to the Tribunal was "plainly in error". He contended that there is no enabling legislation that gives the Tribunal jurisdiction to make orders in relation to a personal loan where it is the lender, as opposed to the consumer, who is bringing the claim. 2. Without determining the correctness of that contention, the defendant maintained in this Court that, irrespective of the characterisation of the $20,000, "it would have been credited in the final calculation of claims in the Tribunal such that it was unnecessary to consider the characterisation of the $20,000 and subsequently unnecessary to appeal [from] the Local Court decision." 3. Unfortunately, that concession, extracted in my view somewhat begrudgingly from the defendant by me, could and should have been made much sooner and in clear terms. It was never made that plain in the defendant's pleadings and the admission of the advance that was made as early as 1 May 2017 in his points of defence filed on that day continued in terms to tie the sum of $20,000 to the building work that he performed. Indeed, in his points of defence filed on 2 March 2018, not only did the defendant not plainly concede the credit of $20,000 to which the plaintiff was entitled, the defendant specifically alleged that the plaintiff's "pleadings fail[ed] to address the cause of action being relied upon and the statutory provisions which give rise to the jurisdiction to allow the Tribunal to make orders." In that sense, the defendant was unambiguously putting in issue the jurisdiction of the Tribunal to deal with the plaintiff's claim for money lent. 4. In my opinion, the plaintiff would have been entitled in the Tribunal to assert the credit which the defendant ultimately conceded. Even if there had been no jurisdiction in the Tribunal to deal with the plaintiff's $20,000 loan, the defendant had participated in the transfer of the proceedings from the Local Court to the Tribunal with knowledge of his protest that such a course may deprive him of a forum in which to recover it. If the defendant had intended to take any different course, it was incumbent upon him to say so in clear terms when the matter was in the Local Court. The defendant did not do so until the matter actually reached me, and then only in the course of what passed between me and the defendant's legal representative in the terms extracted in my judgment: see Islam v Javam [2018] NSWSC 1430 at [11]. 5. Part of what was said to me by the defendant's representative was this: "We say that we can't – we have asked for the matter to be transferred to the Tribunal. We can't be heard to say that the Tribunal can't deal with it. We say that the credit is there, as has been the defence all along." 1. In my view the plaintiff should have perceived that the position was as stated by the defendant before me and continued with the proceedings in the Tribunal. By the same token, the defendant did not articulate that position in clear terms, and was not prepared until he appeared in this Court to put the matter beyond doubt. For example, if the defendant had indicated, for example in correspondence, that he would not take a jurisdictional point concerning the loan, if one existed, the plaintiff would have been put at ease and the appeal to this Court would have been entirely obviated. Correspondingly, the plaintiff could have put the defendant on notice that he would insist that the defendant could not be heard in the Tribunal, given the history of the litigation, to say that it could not deal with his loan claim. 2. There was in this sense fault on both sides. It follows in my judgment that he appropriate order is that there should be no order as to the costs of the proceedings in this Court.