Berou v CTTT & Anor

[2007] NSWSC 1046

Supreme Court of NSW|2007-09-14|Before: Harrison J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2007-09-14

Before

Harrison J

Catchwords

Prerogative relief - Decision of CTTT - denial of procedural fairness - error of law

Source

Original judgment source is linked above.

Catchwords

Prerogative relief - Decision of CTTT - denial of procedural fairness - error of law

Judgment (24 paragraphs)

[1]

Background 6 On 13 March 2006, Mr Berou filed an application seeking an order that the homeowners Mr and Mrs Saad pay the sum of $4,600 which was the balance owing for carrying out wrought iron work. On 19 April 2006, the Tribunal made directions with respect to settlement discussions, exchange of documents and the filing of a cross application by the homeowners. On 21 April 2006, the homeowners filed an application seeking an order that Mr Berou pay back the money and sought costs of repairs of approximately $40,000 to be reimbursed. 7 On 1 May 2006, the Tribunal Member listed the matter for hearing on 1 June 2006 and confirmed with the homeowner that he was ready to proceed; and confirmed that the contractor, George Berou was ready to proceed after explaining to him that the directions made by the Tribunal on 19 April 2006 had not given him an opportunity to prepare a case in reply to the homeowner's application; notwithstanding the Tribunal's warning to him, the contractor stated that he wanted the hearing to proceed.

[2]

The relevant statutory provisions 8 Section 65(1) of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) (the Act) provides: "(1) Except as provided by this section, a court has no jurisdiction to grant relief or a remedy by way of: (a) a judgment or order in the nature of prohibition, mandamus, certiorari or other relief, or

[5]

The Tribunal generally 12 At the outset, it is helpful to set out some of the provisions of the Act. The functions of the Tribunal are to adjudicate disputes between consumers and commercial disputes between landlords and tenants. The Tribunal is not constrained by the rigour of the courtroom. Its objects are to ensure that the Tribunal is accessible, its proceedings are efficient and effective, its decisions are fair and to enable proceedings before the Tribunal to be determined in an informal, expeditious and inexpensive manner. The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms (s 28). I shall discuss ss 28 and 35 in more detail later in this judgment. 13 Evidence must be given on oath or statutory declaration (s 39(1)) but the Tribunal is not bound by the rules or practice of evidence and the Tribunal may inform itself on any matter in such manner as it considers appropriate (s 28(2)). The Tribunal must conform to the rules of natural justice, but broadly speaking, has control of and responsibility for its own procedures (s 28(1) and (2)). Its business is conducted in public (s 33). Section 35 provides that the Tribunal must ensure that each party in any proceedings is given a reasonable opportunity to call or give evidence and otherwise present the party's case (whether at a hearing or otherwise); and to make submissions in relation to the issues in the proceedings. Normally, a party to the proceedings has carriage of his or her own case and is not entitled to be legally represented (s 36(1)). The Tribunal has the power to award costs (s 53), but usually each party bears its own costs. Pursuant to s 54 of the Act, the Tribunal is obliged to use its best endeavours to bring the parties to a settlement before making an order. The Tribunal has a power to correct its decision (s 50) and the Registrar can issue a certificate, which operates as a judgment to recover amounts ordered to be paid (s 51).

[19]

Whether plaintiff was given a reasonable opportunity to call witnesses 19 Mr Berou was unrepresented at the proceedings before the Tribunal. Having first arrived in Australia from Syria he says that he has a very limited understanding of English and cannot read or write in English with any great proficiency. 20 Mr Berou says the interpreter provided at the hearing before the Tribunal on 1 June 2006 spoke a Sudanese dialect of Arabic which Mr Berou did not fully understand. This is disputed. Mona Saad deposed that during the course of her work on her home she had always spoken to Mr Berou in Arabic. In her opinion Mr Berou's interpreter appeared to be Egyptian, was clearly understandable in his translations both from Arabic to English and English to Arabic at the Tribunal. Further, she says that she did not hear any errors in the interpreting, and nor does she remember Mr Berou making any complaint about the interpreter, nor any misinterpretation being made. She does not recall any attempt by Mr Berou to get the two men with him in court to give evidence. The transcript does not record Mr Berou asking the Tribunal Member if he could call witnesses to give evidence. 21 I have carefully read the transcript and it is my view that Mr Berou was able to present a fairly detailed case by the use of an interpreter. Sometimes he answered questions in English (as denoted in the transcript) but the majority of time he used the interpreter. I cannot discern any difficulties he had with what the Tribunal Member was asking him. Mr Berou was able to present his case. 22 Mr Berou deposed that he made a request to call Kousay Naamo and Fadiy Youssev as witnesses, but he was not provided an opportunity to call them. They were present at the Tribunal on the day of the hearing. He asserts that their evidence would have been of great assistance to his case. Mr Naamo, who was employed by Mr Berou at the time, would have given evidence that the alleged spray painted areas were in fact powder coated, and that some of the items on the job site could have been rectified. He would have verified that such an offer had been made and declined by Mr Saad. Mr Youssev would have given evidence that the installation was carried out as instructed by Mrs Saad. Further, Mr Berou deposed that Mr Youssev would have confirmed that Mr Saad had not been on site at the time and did not discuss any of the particulars of the job with him. 23 Mr Berou was cross examined on this issue at the hearing of this appeal. At first he agreed that what he said in his affidavit was correct. That is, that he was not provided with an opportunity to call his witnesses even though he requested that he be allowed to call them (t 2.48). He gave evidence that he told the Tribunal Member that he had witnesses. Later he said that he did not know that he could request the witnesses and he did not request to call them directly. Finally, in re examination he said that he said to the interpreter "I have witnesses" and to tell the Tribunal Member that he had witnesses. 24 As there is no record of his request to call witnesses in the transcript, it is disputed by Mrs Saad and Mr Berou's evidence on this topic is inconsistent, it is my view that the Tribunal Member was not informed that Mr Berou wanted to call witnesses to give evidence. I am not persuaded that Mr Berou asked the interpreter to tell the Tribunal Member that he wanted to call witnesses. If Mr Berou had wanted to call these witnesses, he was in a position to make such a request to the Tribunal Member. He did not choose to do so.

[20]

The quantum meruit claim and whether an adjournment should have been granted 25 The plaintiff submitted a reading of the transcript of the proceedings before the CTT reveals that the plaintiff had very little knowledge about how to prosecute his application and defend the cross application. The plaintiff's Counsel highlighted that plaintiff was not even aware that the absence of a written agreement between himself and the second defendant precluded him from claiming damages or to enforce any other remedy in respect of breach of contract pursuant to s 10 of the Home Building Act 1989 (NSW) (t 12.2). In oral submissions the plaintiff's Counsel stated that while procedural directions were given in relation to Mr Berou's claim none were given in relation to the cross application. 26 The plaintiff submitted that the transcript reveals that the Tribunal member did not make it clear that there were three crucial elements to a quantum meruit claim. He further submitted that the Tribunal Member should have informed him, in no uncertain terms, that he simply did not have any evidence in support of a quantum meruit claim. 27 The following are relevant portions of the transcript are relevant to both issues of the quantum meruit claim and whether an adjournment should have been granted. They are: MEMBER: "Mr Saad has filed an application seeking that you pay him $40,000. Right, no directions have been made with respect to the exchange of documents. There may be documents. Are you ready to proceed to answer that claim today?" MR BEROU: Yes MEMBER: "You understand that if you say yes, you are ready to proceed I will go on to hear the matter and the applicant will more than likely give me documents in support of his case." MR BEROU: "Yes." MEMBER: "Those documents, most of it appears were attached to the application. If you need time to prepare a reply to those documents, for example, to obtain an expert's report, then you should consider the position now, because if I start hearing the matter I will not give you time to obtain such a report. I will proceed on whatever evidence is available today. So what I am asking you is do you require time to prepare a reply to this claim that is being brought by the applicant on 21 April?" MR BEROU: "Go ahead." … MEMBER: "Before you go any further, did you have a written contract for this work?" MR BEROU: "No, no." MEMBER: "Well, I hope you don't take offence at what I'm about to say, Mr Berou but it appears to me that you would benefit from legal representation. The reason being that in order to set out your case in the absence of a written agreement, contrary to the provisions of the Home Building Act, you have to show to me why or you have to show to the Tribunal firstly why an order should be made in you favour given that no written contract has been entered into in breach of the Act. And then after you have done that you have to show me that the work was requested, that the work was done, and what the value of the work is. Also there's provisions in the Home Building Act with respect to insurance and it may - did you obtain any home warranty insurance for this work you were going to do?" MR BEROU: "I have insurance that covers me and the co-workers that work with me, the labourers that work with me." MEMBER: "I believe you would benefit from legal advice. I saw that previously you were represented in the Local Court by Mr Fegali, Fegali from Prestige solicitors. Would you like to obtain legal representation?" MR BEROU: "No." MEMBER: "No, not now, we'd have to come back another day, because I don't think you are presenting your case as strongly as you could and that could be because of language difficulties and you don't understand the law that relates to building activities, residential building work. And I want to give you the opportunity to present your case at its strongest." INTERPRETER: "I'm just asking if he's keeping track of what I'm saying." MEMBER: "What do you think?" ME BEROU: "The legal representation would be through the Tribunal or I have to get my legal representation?" MEMBER: "You would have to get your legal representation. The Tribunal won't provide it to you. I'm giving you the opportunity to do that." MR BEROU: "Shouldn't we - should I tell my story to the end and then see what I'm forced to there after I've finished telling my side of the story?" MEMBER: "On what I've heard so far you don't understand, it appears to me, what you need to show the Tribunal to succeed in your claim. Moreover, given that the applicant, or rather Mr Saad, is seeking $40,000 from you it may be prudent for you to carefully consider your position. If you proceed further without legal representation - which you can, it's your choice - once I've heard the evidence I go to a decision and then you will be abide by that decision." MR BEROU: "Yes." … MEMBER: "Mr Berou, the reason I want to extend to you every opportunity to present your case properly is because the claim made by the other side against you is substantial. Right? Have you received a copy of the application from Mr Saad?" MR BEROU: "Yes." MEMBER: "He's claiming $40,000." MR BEROU: "Yes, I received that." MEMBER: "Unless you are very well prepared, it could be an outcome of these proceedings that an order is made against you for that amount. I haven't heard all the evidence yet but that's a possibility. That's why I want to make sure that you are well prepared to answer that matter." MR BEROU: "Yes.* Providing that there is a defect in my work as Mr Saad claims I'm ready to go ahead." MEMBER: "So you want to proceed today without legal presentation?" MR BEROU: "Like, hypothetically speaking, if I tell my side of the story to the end, could then after the decision appeal the decision if it's not again - if it's not in my favour?" … MEMBER: "Do you want to proceed today or not? MR BEROU: "Yes." * Denotes not through interpreter 28 On 1 May 2006 (prior to the hearing date of 1 June 2006), the Tribunal Member explained to Mr Berou that the directions made on 19 April 2006 had not given him a chance to prepare his case in reply to the homeowners' application and notwithstanding that warning, Mr Berou stated that he wanted to proceed. Thus, prior to the hearing date Mr Berou indicated that he wanted to matter to go to hearing. 29 It is my view that at the hearing in the Tribunal the Tribunal Member could not have done more. The Tribunal Member explained to the plaintiff the elements of a quantum meruit claim and that on what he had heard so far he [the plaintiff] did not understand what he needed to show the Tribunal to succeed in his claim. The Tribunal Member explained that if the plaintiff proceeded further without legal representation and heard the evidence, the decision would be final. 30 Despite being advised on a number of occasions that he could obtain an adjournment Mr Berou elected not to take one. In these circumstances the Tribunal Member is not obliged to force a plaintiff to take an adjournment over his continued election not to take one. The Tribunal Member could do no more. 31 As I stated in Milstern Retirements Services Pty Ltd v Carton & Ors [2006] NSWSC 937 it is not the role of the Tribunal Member to ensure that the plaintiff's case is prepared and presented at its highest. Mr Berou chose to follow a particular course which ultimately did not serve him well. 32 There was no denial of procedural fairness. There is no error of law. The decision should not be quashed. 33 The appeal is dismissed. The decision of Tribunal Member Marzilli dated 2 August 2006 is affirmed. The amended summons filed 19 June 2007 is dismissed. 34 Costs are discretionary. Costs normally follow the event. The plaintiff is to pay the second defendant's costs as agreed or assessed.

Berou v CTTT & Anor

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (24 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (4)

Cited By (2)