Roberts v Goodwin Street Developments Pty Ltd

Court of Appeal (NSW)|2022-06-20|Before: Gleeson JA, Stevenson J

Background

The proceedings below involved two claims by Goodwin against Mr Roberts. First, a claim for damage to buildings and removal of materials, fixtures and fittings that had been incorporated into the buildings on land owned by Goodwin in Jesmond, close to the campus of the University of Newcastle. Second, a claim for damages for breach of statutory duty under s 37 of the Design and Building Practitioners Act 2020 (NSW) (the DBP Act) to avoid economic loss caused by identified defects in the building on the land arising from the construction work. Goodwin's case was that Mr Roberts had carried out "construction work" on the site for the purposes of s 37 of the DBP Act, as he relevantly administered the building contract on behalf of the builder, DSD Builders Pty Ltd, which had been engaged by Goodwin to construct three residential boarding houses on the site, and that he controlled the carrying out of the construction work on the site on behalf of DSD.
The primary judge found that Mr Roberts caused damage and did remove materials, fixtures, and fittings from the buildings and that he carried out "construction work" as defined in s 36 of the DBP Act and acted in breach of his duty of care under s 37 of that Act. Accordingly, Mr Roberts was found liable to Goodwin for the cost of making good the damage and the costs of the building defects. As indicated, damages were assessed in the sum of $948,820.59.
On 31 May 2022, Mr Roberts filed a notice of appeal. The stated grounds of appeal are as follows: 1. A competent person would agree that the flesh of "daniel" or "daniel roberts" is not the same as the office of Trustee "Daniel" or "Daniel Roberts" or the Trust Corpus True Person "DANIEL" "ROBERTS" "DANIEL "ROBERTS" "BENEFICIARY". 2. The appellant is a living man with flesh and blood, a living man cannot defend himself in a civil jurisdiction. 3. The appellant is a member of the Homo Sapien Species, owns Divine Trust Rights to a Good Soul, Body, Mind and Property. 4. The appellant is not a Thing and cannot be Legally converted to a Thing via Civil Controversy. 5. The appellant is a Property owner and is apologetic for any Mistake of Fact. 6. The prospective respondent is a Protagonist of Drama and discharging this case is resolution of the Plot. 7. The prospective respondent is a fictional Person and cannot make a claim against a living man Natural Person under the Law. 8. The appellant is not surety for a corporate fiction, Inferior Trust(s) can't stand, there is hidden accounting, we don't accept punitive or cohesive benefits. 9. The appellant is trustee of an express True Trust, appellant has a superior Trust position.

The stay application

In support of the stay application, Mr Roberts relied upon his affidavit of 15 June 2022 which stated that he was incorrectly added as the second defendant to the proceedings below, that the judgment below was "reliant upon the testimony of a convicted criminal" and no weight should have been given to the evidence of Mr Stevo Konjarski (concerning damage caused to buildings by Mr Roberts), that there are no legal grounds to infer trespass as the site was under the control of the builder, that Mr Roberts was not a supervisor for the development as the builder had a statutory compliant nominated supervisory, and that Mr Roberts was prejudiced insofar as Goodwin relied on "unrebutted cost of repair" and no valuation evidence was provided in relation to a claim in trespass.
Although afforded the opportunity to do so, Mr Roberts made no oral submissions in support of the stay application, indicating that he was content to rely upon his affidavit. Counsel for Goodwin submitted that the notice of appeal failed to disclose any serious arguable grounds of appeal, nor did Mr Roberts' affidavit disclose any reason for a stay. In reply, Mr Roberts submitted that enforcement of the judgment by Goodwin would be futile because it would render him bankrupt. However, there was no evidence of Mr Roberts' financial means.
The principles to be applied when exercising the Court's power to grant a stay pending an appeal are well known: Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694-695, Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737; [2002] NSWCA 383 at [17]-[20].
Prima facie the successful party is entitled to the benefit of a judgment, but a stay may be granted where an applicant demonstrates an appropriate case to warrant the exercise of discretion in its favour.
The mere filing of the appeal is insufficient, of itself, to demonstrate such a case. Usually, it is demonstrated by showing that there are arguable grounds of appeal and that there is a significant risk that if money is paid it will be unable to be recovered if the appeal succeeds or by demonstrating that unless a stay is granted the appeal will be rendered nugatory: TCN Channel 9 Pty Limited v Antoniadis (No 2) (1999) 48 NSWLR 381; [1999] NSWCA 104 at [15].
Importantly, it is for the applicant to demonstrate a proper basis for a stay that will be fair as between the respective interests of the parties: see Alexander v Cambridge Credit Corporation Ltd at 694; Adeels Palace Pty Ltd v Moubarak [2009] NSWCA 130 at [2].
It is appropriate to consider first whether the appeal raises a serious question to be tried and if so, where the balance of convenience lies: see Campbell JA in Vaughan v Dawson [2008] NSWCA 169 at [13]; Kalifair at [18].

Is there a serious question to be tried?

For there to be a serious question to be tried in relation to an appeal, there needs to be a demonstrated prospect to the Court that the appeal may succeed: Vaughan v Dawson at [18]. Here, the notice of appeal does not identify any arguable grounds of appeal. Indeed, as presently drafted, the appeal is manifestly hopeless.
Turning to the matters raised in Mr Roberts affidavit, which might be thought to be a basis for challenging the decision below, the following observations can be made.
First, the complaint that Mr Roberts should not have been joined as the second defendant below, in addition to the builder, is without merit.
Second, the complaint that the evidence of Mr Konjarski ought not to have been accepted because he was a "convicted criminal" does not appear to have been a submission advanced below: cf Mr Roberts' submissions dated 12 April 2022, par [13]. In any event, the primary judge's acceptance of Mr Konjarski's evidence was based on his assessment of the reliability of his evidence, noting that Mr Roberts did not give evidence at trial, disputing Mr Konjarski's evidence. The affidavit of Mr Roberts does not identify any arguable grounds for challenging his Honour's acceptance of Mr Konjarski's evidence.
Third, at trial, counsel for Mr Roberts accepted that Mr Roberts had engaged in "project management" of the construction on Goodwin's site, and thus engaged in "construction work" for the purposes of s 36(1) of the DPB Act to that extent: at [131]. Moreover, Mr Roberts' affidavit does not identify any arguable ground for challenging the primary judge's finding that the evidence also disclosed that Mr Robert's supervised the builder's construction of the relevant project: at [132]-[138].
Fourth, the complaint that there was no valuation evidence in support of the claim in trespass for damages is misconceived. There was no issue at trial as to what was the reasonable cost of repairing the damage done to the property, as the primary judge noted at [54]-[55].
I am not persuaded that there are any arguable grounds of appeal disclosed in Mr Roberts' affidavit. In view of this conclusion, it is strictly unnecessary to consider the balance of convenience or balance of hardship. However, I will briefly indicate my views.

Balance of convenience

It may be accepted that if a stay is not granted and Goodwin commences and pursues bankruptcy proceedings against Mr Roberts, then this may stifle his appeal. I say "may", because no evidence was given relating to the financial means of Mr Roberts, nor the extent to which he may be able to call upon others to assist him. Moreover, even if Mr Roberts had shown a reason or demonstrated that this was an appropriate case for a stay, which in my view he has not, he failed to "provide the court with material upon the basis of which the court can fix the stay that will be just to both parties": Alexander v Cambridge Credit at 697.

Conclusion

I am not satisfied that Mr Roberts has demonstrated an arguable case for appeal, and this is a sufficient basis for rejecting the application for a stay. Although it is unnecessary for my decision, the balance of convenience favours Goodwin since Mr Roberts has not made out a case of hardship in relation to payment of the judgment debt or that a stay would stifle his appeal.
For these reasons, at the conclusion of oral argument on 20 June 2022, I ordered that Mr Roberts' notice of motion filed 1 June 2022 be dismissed with costs.

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: 22 June 2022

Solicitors: Daniel Roberts (self-represented - Applicant) Richard Green Construction Lawyers (Respondent) File Number(s): 2022/151935 Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division Citation: [2022] NSWSC 624 Date of Decision: 19 May 2022 Before: Stevenson J File Number(s): 2018/260981

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