Atkinson v CTTT

[13]

The estimated cost of the work was stated to be $100,000.00. Detailed plans were submitted with the application and revealed substantial extensions, alterations and renovations. 7 On 24 March 2005 the Office of Fair Trading issued an Owner Builder Permit. That provided: "Should the property be sold within six years of completion of the work, it will be necessary to obtain home warranty building insurance … if the value of the work was greater than $12,000 a certificate of insurance must be attached to any contract for sale." 8 No home warranty building insurance was obtained and no certificate of insurance was attached to the contract for sale to the Crowleys. 9 The plaintiffs arranged for various tradesmen to carry out the works the subject of the development application. Serious defects developed. 10 About February 2008 Mrs Crowley spoke to Mr Atkinson and told him of the water problems and asked him to help her contact the builder responsible. Mr Atkinson replied that he did not know how to get in contact with the builder, that the builder went back to Ireland and that he would get back to her. 11 Mr Atkinson did not do so. Mr Crowley spoke to Mr Atkinson in about March 2008 and Mr Atkinson reiterated that he thought that the builders had gone back to Ireland, stated that he did not have the number, that he would look into the matter and get back to Mr Crowley. Mr Atkinson did not do so. 12 About 5 May 2008 Mr Crowley lodged a complaint with the Office of Fair Trading. An officer from that Office made this diary entry: "Lisa phoned back and I relayed the nature of my call. … Lisa stated that her husband and herself have moved to France, and whilst they are hoping it will be permanently, it may not be a viable option. C is unsure how long they will be in France for because of this reason … she will arrange for her husband, Clifford, to phone me back." 13 According to Mr Atkinson, he and his wife were in France at the time of the telephone call from the officer. 14 Mr Crowley contacted the real estate agent through whom he and his wife purchased the Castle Cove property and the solicitor who acted for the plaintiffs on the sale, but each declined to supply contact details of the plaintiffs to Mr Crowley. 15 Mrs Crowley made an electoral roll search and found an address for Lisa Atkinson of 53 New Beach Road, Darling Point. On visiting that address with her husband they found that it was a building site. 16 Mr Crowley has detailed in his affidavit the many steps which he took to locate the address of Mr and Mrs Atkinson. Mrs Crowley has also detailed the steps taken by her. 17 Mr Crowley said that during January 2009 he conducted an internet search during which he determined that a person named Clifford Atkinson was the manager of the North Sydney over 35's soccer club, that via the internet he made contact on the email address shown on the club website as "cliff@Xactsolutions.net" and asked for details as to how he would go about joining the club. Mr Crowley said he subsequently received an email from Clifford Atkinson and was included on the distribution list for the team. The address shown on the emails was: "Cliff Atkinson CEO Xact Solutions Ltd Level 42, Australia Square Sydney NSW 2000 Tel: +61282593004 Fax: +61282593099 Mob: +61 …" 18 Mr Crowley said that during January 2009 he telephoned the administration office of Australia Square and spoke with the receptionist who stated that Clifford Atkinson worked on the 42nd floor but not at Xact Solutions, that Xact Solutions were not shown in the building and that it was believed that the office was leased to a company named "Quaestor". On searching the internet for "Quaestor" its website showed the following:

[14]

a) The address was level 42, Australia Square. b) The fax number was 61 2 8259 3099. (This was identical to the fax number on Mr Atkinson's emails.) c) The telephone number was 61 2 8259 3000. (The number shown on the emails of 612 8259 3004 was probably Mr Atkinson's direct telephone line.) 19 On 23 January 2009 Mr Crowley appeared in person before the CTTT and sought an order for substituted service. He was told to apply in writing with all the supporting reasons. About 28 January 2009 the Crowleys applied in writing for substituted service and supplied the supporting material set out in the Schedule. 20 In my opinion this material was sufficient to support the direction given by the Chairperson of the CTTT. The 2008 and 2009 Law Almanacs show that Kay Ransome was the Chairperson in those years. 21 The Tribunal is not bound by the rules of evidence and may inform itself on any matter in such manner as it thinks fit, subject to the rules of procedural fairness: s 28(2) of the CTTT Act. The notations in the CTTT file indicate that the staff of the CTTT carried out the Chairperson's direction. See also s3, s 24(3) and s 28(5) of the Act. 22 The Chairperson had before her material that Mr Atkinson was the CEO, Xact Solutions, Level 42, Australia Square, that a company called Quaestor was on Level 42, with phone and fax details which matched those supplied by Mr Atkinson in his emails. Australia Square is well known in Sydney and has a tower building which, inter alia, contains many floors of office space between the lower floors and the top floor. 23 With the matching telephone and facsimile details it would be safe to draw the inference that Quaestor and Mr Atkinson shared the same office on Level 42. It would also be safe to draw the inference that any letter or notice addressed to Lisa Atkinson and Clifford Atkinson C/- Quaestor, Level 42 Australia Square, 264 George Street Sydney NSW would in all reasonable probability come to the plaintiffs' attention. It was open to the Chairperson to draw both inferences and it would have been surprising if she had not done so. 24 It appears from the CTTT file, consequent upon the direction of the Chairperson, that probably about 5 February 2009 by post the CTTT sent notice of a directions hearing before it on 11 March 2009 addressed to "Lisa Atkinson and Clifford Atkinson, C/- C/- Quaestor, Floor 42 Australia Square, 264 George Street Sydney NSW 2000". The notice warned Mr and Mrs Atkinson that if they did not appear "the Tribunal may decide the matter in their absence and that the decision made would be binding on them". On the bottom of the notice this stamp appears: "Received 10 February 2009 Consumer, Trader & Tenancy Tribunal Sydney"

[29]

a) Mr Atkinson is not a shy person. He would have made himself known. b) The material before the chairperson suggested that Quaestor and Mr Atkinson used the same office. That appears to have been a small office. c) It is inconceivable that the Notices from the Tribunal of about 5 February 2009, 11 March 2009 and 20 March 2009 addressed to Lisa and Clifford Atkinson did not reach him even though addressed care of Quaestor. Mr Atkinson would have been known to those who conducted the business of Quaestor and vice versa. The building operator was aware of both Gamma Capital and Quaestor. I have not overlooked Mr Atkinson's evidence that these were serviced offices without the services. d) Mr Atkinson said that Quaestor had moved out when he was offered a desk in 2006. That is not what the company search, Ms Duong's email and the telephone and facsimile numbers suggest. e) Mr Atkinson (T 14) agreed that the address shown in the email was his business address. f) Mr Atkinson agreed that a web page showed him as the Managing Director of Gamma Capital. Mr Atkinson said he did not hold that position and that the actual managing director allowed him to put the name of his company on the web site of Mr Atkinson. 45 As to Mr Atkinson's assertion about defects in paragraph 16 of his affidavit, this is incorrect. The Crowleys' complaints did not relate to the stairs but to the defects in the other work carried out under the owner-builder permit. 46 In Watt v Barnett & Ors 1878 3QB 183 a Divisional Court comprising Cockburn CJ and Mellor J was dealing with an application to set aside a judgment and the construction of Order IX, rule 2. The Chief Justice posed the question whether an order under that provision is final and conclusive. At p 185 he held that the judgment was signed regularly. His Lordship continued: "All I hold is that the order for substituted service is not finally binding and conclusive, if the Court are satisfied that through that order injustice will be done if the defendant is not let in to defend, he never having had any knowledge of the action. To apply this view to the present case. Before letting the defendant in to defend we must consider whether he give us any grounds for thinking that he has a substantial case which he desire to try. If he does not we are not bound to set aside a judgment which we may think ought in the interests of justice to stand."

[30]

Mellor J came to the same conclusion but expressed his reasons thus: "I think that the object of the 2 nd rule of Order IX was to obviate the difficulties that the plaintiff might be exposed to by reason of a defendant's going abroad and keeping abroad, and it being impossible to effect personal service, and to prevent the plaintiffs' right being entirely defeated by reason of these difficulties. It was intended, in my opinion, in such cases to enable the Court to order substituted service, and that when such substituted service is directed it should have all the effects of personal service. Under these circumstances the judgment in this case was perfectly regular; and though I think it is competent to us to let the defendant in to defend, the defendant can, in my opinion, only be so let in on satisfying us that he has merits, and that he had no knowledge of the proceedings. The proceedings being regular, if he had known of them, I think he would have been in the same position as if he had been served with the writ." 47 In the present case Mr Atkinson's evidence cannot be regarded as reliable. I am not satisfied that he had no knowledge of the proceedings. Indeed, it is probable that the notices sent by the CTTT reached him and that the plaintiffs had knowledge of the proceedings despite their denials and assertions. The Direction given by the Chairperson as to substituted service was open to her on the materials before her and it is reasonably probable both that the method of service adopted would have brought the proceedings to the attention of the plaintiffs and that they had knowledge of the proceedings. 48 Counsel for the plaintiffs stressed the terms of section 35 of the CTTT Act which provides: "The Tribunal must ensure that each party in any proceedings is given a reasonable opportunity: (a) to call or give evidence and otherwise present the party's case (whether at a hearing or otherwise), and (b) to make submissions in relation to the issues in the proceedings." 49 I have also considered ss 65(3) and s 78. My attention was directed by counsel for the Crowleys not only to s 78(6) but s 78(1)(b) which provides that a notice or document may be served on a person by sending it by post to the business address of the person that was last known to the person serving the document. Mr Atkinson conceded that his business address was as set out in his email of 27 January 2009, namely, Xact Solutions Ltd, Level 42, Australia Square Sydney with the telephone, fax and mobile phone numbers he gave. He also gave his email address. Of course, Xact Solutions Ltd had been de-registered and Quaestor occupied the same office as Gamma Capital and Mr Atkinson. 50 Counsel for the plaintiffs asked the Court to accept the plaintiffs as witnesses of truth when they asserted that they had no knowledge of the proceedings. I did not do so. 51 Counsel for the plaintiffs also submitted that the rules of procedural fairness had in any event not been complied with in that only the materials of the Crowleys had been considered and that the plaintiffs had neither led nor been able to lead their evidence. Further, they had not been able to make submissions. With their knowledge of the proceedings the plaintiffs had the opportunity to do so but neither availed themselves of that opportunity nor utilised it. 52 The Crowleys submitted that the plaintiffs should be refused relief in the exercise of the Court's discretion in that they had not shown that they had an arguable defence on the merits. The Crowleys pointed out that, in paragraph 5 of his affidavit of 13 December 2009, Mr Atkinson said that the plaintiffs "did not arrange for any other building work on the premises (other than the construction of a swimming pool) apart from the concrete stairs … All other work was carried out by myself." This does not come to grips with other quite extensive work done and the alleged defects. 53 Counsel for the plaintiffs contended that it was not appropriate to explore the question, at this stage, whether the plaintiffs had a defence on the merits as that could lead to the primary complaint of a denial of procedural fairness being sidetracked. 54 I did not envisage a lengthy enquiry as to the merits of any defence, but it would have been useful to have been told what arguable defence on the merits the plaintiffs had. At first blush it seemed that the plaintiffs as owner-builders were liable for any defects in the work done and that the materials advanced by the Crowleys suggested that there were substantial defects to be remedied at a cost which appeared to have been substantiated. Relief must also be refused on this alternate ground. 55 I dismiss the summons. I order the plaintiffs to pay the costs of the defendants of the summons.

Atkinson v CTTT - [2010] NSWSC 426 - NSWSC 2010 case summary — Zoe

At a glance

Court

Decision date

Before

Source

Judgment (31 paragraphs)

Parties