Sattar v Boral Constructions Materials Group Limited

1. [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. [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. [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. [4]

   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. [5]

   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. [6]

   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. [7]

   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. [8]

   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. [9]

   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. [10]

   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. [11]

   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. [12]

   Ms Sattar seeks damages in the sum of $545,000.

The pleading framework in the Local Court

1. [13]

   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. [14]

   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. [15]

   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. [16]

   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. [17]

   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. [18]

   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. [19]

   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. [20]

   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. [21]

   At the hearing the Magistrate summarised the facts that were not in dispute. They are:

   1. (1)

      Ms Sattar had a discussion with Lina Hatem who was an accounts manager with Boral Limited and its related bodies corporate.

   2. (2)

      Discussions took place between Ms Sattar and Ms Hatem and a price for the supply of the appropriate concrete was negotiated.

   3. (3)

      The figure agreed to was $191 per cubic metre.

   4. (4)

      The quantity initially, to be supplied, was agreed at 90 cubic metres.

   5. (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. (6)

      The liquid concrete was delivered to the building site on 22 October 2014 and the total delivered was 182.70 cubic metres.

   7. (7)

      The deliveries to the building site commenced at 7.12 am and continued until shortly after 8.00 pm that day.

   8. (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.

3. [22]

   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:

4. [23]

   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.

5. [24]

   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.

6. [25]

   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]:

7. [26]

   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. [27]

   The defendants rely on UCPR 13.4(1) and Rule 50.16A.

2. [28]

   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. [29]

   UCPR Rule 50.16A refers to the objections to competency of an appeal. It reads:

4. [30]

   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:

5. [31]

   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.

6. [32]

   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.

7. [33]

   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.

8. [34]

   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. [35]

   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. [36]

   Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the defendants’ costs of the proceedings on an ordinary basis.