A Sussman Construction v Ireland & Ors

In Person (Plaintiff) SOLICITORS : In Person (First and Second Defendants) I V Knight - Crown Solicitor - Submitting Appearance (Third Defendant)

LOWER COURT Consumer, Trader & Tenancy Tribunal JURISDICTION : LOWER COURT HB 01/74520 FILE NUMBER(S) : LOWER COURT D Baker, Member JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST

30025 of 2003 A Sussman Construction Pty Ltd v Rod Ireland & Ors

JUDGMENT 1 MASTER: The first and second defendants are the owners of a property known as 53 Salisbury Road Rose Bay. They desired to have skylights installed at the property. They contacted a Mr Allen (the Project Manager for the plaintiff). It appears that the plaintiff was doing other work in respect of the property. 2 Mr Allen made arrangements with Mr McGrath (the Managing Director of Castle Carpenters Pty Ltd). A quote for labour to perform the work was accepted by Mr Allen.

3 There was no contract in writing which complied with the Home Building Act 1989 (the Act). There was no contract of insurance that complied with the Act. 4 The skylights were installed by Mr McGrath. There were problems with leakage. Attempts to rectify the problems were unsuccessful and saw damage being done to the existing roof. The effect of the damage was that there was a need for the installation of a new roof. 5 The first and second defendants brought proceedings in the Consumer, Trader and Tenancy Tribunal (the Tribunal). 6 A contested hearing took place before the Tribunal (Member, Mr Baker). On 2 July 2002 an order was made against the plaintiff to pay the sum of $3,500 within 28 days. 7 The following findings were made:- " FINDINGS In balance I accept the evidence of Mr McGrath and of Mr & Mrs Ireland, the applicants in these proceedings. For all intents and purposes Mr & Mrs Ireland were of the reasonable belief that they entered into a contract with Mr. Sussman's company for him to organise and to arrange for a sub-contractor to carry out the work and that such work was carried out under his licence. It is also clear that there were (sic) was no contract in writing in compliance with the Home Building Act 1989 . As such there is no contract that the builder can rely upon in relation to recovery of payment nor is there any provision to account for him to rely upon in relation to his failure to have home owners warranty insurance, for sake of argument that he had home owners warranty insurance as a result of having a professional indemnity policy. Professional indemnity policy does not refer to any coverage relating to home owners warranty insurance which is an essential requirement of such policy. As such, the respondent is not able to rely upon any claims pursuant to quantum merit or for compensation. The applicants are also claiming that it was necessary for the roof to be replaced. I note that the roof was approximately 20 years old and that the roof that they had which replaced the old roof was of a better quality. Accordingly I have come to the conclusion that the cost of the new roof should be discounted. A. Sussman Constructions submitted a number of quotes from different builders in relation to the cost of the replacement of a roof if I should find in his favour in this respect. Taking into account the submissions made by the applicants in respect to the cost of replacement in the submissions made by A. Sussman Constructions in relation to the quotes from the different builders he obtained, I am of the view that the applicants should be reimbursed in the sum of $3,500.00." 8 The costs actually expended by the first and second defendants in respect of the roof substantially exceeded that sum. The result might be seen as generous to the plaintiff and one which may have led the first and second defendants to consider challenging it. 9 Be that as it may, it was the plaintiff that then sought to propound a challenge to the order made on 2 July 2002. The plaintiff directed a facsimile transmission to the Tribunal which was received on 24 July 2002. It presented as a Notice of Appeal. The Tribunal is not empowered with any appellate functions, but it may grant a rehearing. The plaintiff did not make an application for rehearing in the prescribed form within the prescribed time or pay the prescribed fee. A rehearing application was not +made until 28 January 2003. The application was then well out of time and needed an extension of time. 10 By Notice of Order dated 3 February 2003, the plaintiff was advised that the rehearing application had not been granted. 11 The Tribunal did not extend time for the bringing of the rehearing application. It addressed the merits. It correctly saw the rehearing application as simply a further attempt to reargue issues which had already been dealt with in the hearing of the original application. 12 On 10 March 2003, the plaintiff filed a Summons in this Court. It seeks to challenge both the making of the order and the not granting of the rehearing application. It seeks to do so on the grounds of denial of natural justice and error of law. 13 The challenge was brought out of time and is presently incompetent. It also can only be maintained if an extension of time is granted. 14 Save for repeated reference to the misconceived facsimile of July 2002, the material relied on by the plaintiff does not seek to address past delay and fails to sufficiently explain why the challenge came to be lodged out of time. The delay and the lack of sufficient explanation for it would of itself justify a refusal of any application to extend time. However, for the assistance of the parties I will look briefly at what merits there may be in the challenge. 15 Before proceeding to the question of merits, I should refer to some of the difficulties experienced by the court in dealing with this appeal. The court is left to consider the appeal in the absence of the material that is usually before it. The court does not have a copy of the process relied on by the parties. Although evidence was adduced before the Tribunal, no transcript is available to this Court. Although documentary material was available to the Tribunal, its file has not been placed before the court. 16 All parties appear in person (Mr Sussman represented the plaintiff). It would appear that none of the parties have any legal qualifications. However, it appears that the plaintiff has engaged in other litigation both before the Tribunal and this Court. There may be force in the contention that it is an experienced litigant which has had access to legal advice. There is dispute as to what took place during the hearing (inter alia as to the submissions made on behalf of the plaintiff). 17 The Tribunal has given short written reasons for the decision (see inter alia the Findings which are earlier set forth in this judgment). Largely, the appeal has to be determined in the light of what appears in that document. It is a document that leaves relevant matters unclear. 18 Generally speaking, it can be observed that an appeal brought in such circumstances faces a hopeless task. The court simply does not have before it the material which enables it to properly consider the appeal. 19 Before proceeding further, I should make certain observations as to what was before the Tribunal for determination. 20 The first and second defendants were seeking to recover costs in relation to rectification and the new roof. They were awarded a modest sum in respect of the claim made for the new roof. 21 It is not in dispute that the plaintiff did not make any cross-claim in the proceedings. However, subsequent to the bringing of the application, the plaintiff gave an invoice in the sum of $6,954.55. It was the third of three invoices sent to the first and second defendants for labour and materials (the two earlier invoices had been paid). It related inter alia to the rectification work done to the roof. It seems from what has been said on behalf of the plaintiff that this invoice may have been brought to the attention of the Tribunal in some sense during the proceedings. What may have been done in relation to it is a mystery. The Findings may merely express certain observations made in relation to the plaintiffs' entitlement to payment (including by way of quantum meruit or compensation). It is unclear as to whether or not the Tribunal made any decision in respect of it. A claim in the same sum is now being pursued in the Small Claims Division of the Local Court (Statement of Liquidated Claim issued on 27 February 2003) as a claim for amount due for goods supplied as at 16 February 2001. For completeness, I may add that if such a claim has been dealt with by the Tribunal, the first and second defendants may have a defence of res judicata in the Local Court proceedings. 22 It appears that if the plaintiff was making a monetary claim, it may have been presenting a contradictory stance before the Tribunal. It was asserting that it was not liable for the defective work because it was not the contracting party (it was saying that the contracting party was the sub-contractor) and therefore there was no need for a written contract or home owners warranty insurance. This position would not have been consistent with a claim to be entitled to be paid for labour and materials supplied by it in relation to that work. 23 As I understand the stance ultimately taken in this Court, the plaintiff was not complaining against the order made on the first and second defendants' application. The complaint was directed towards it not being awarded a monetary sum by way of quantum meruit in respect of the labour and materials claimed in the third invoice (which as has been said, is also the subject of the present Local Court proceedings). 24 The view could be easily formed that the plaintiff is engaging in abuse of process by pursuing the same remedy in different proceedings. If that be the case, the plaintiff may be required to elect between either prosecuting any appeal concerning the claim or pursuing the Local Court proceedings. As the matter has not been argued, for present purposes, I put it aside. 25 The Summons and the annexed Statement of Grounds seek to agitate a variety of matters. It is unnecessary to deal with them individually. I shall expressly refer to certain of them. Largely, it can be said that it is apparent from the face of the matters that they are lacking in substance. 26 The claims of denial of procedural fairness are untenable. The plaintiff was given a reasonable opportunity to present its case both during the original hearing and on the rehearing application. 27 I shall now address certain of the submissions alleging errors of law, on the assumption that the Tribunal made a decision in respect of a monetary claim made by the plaintiff. 28 The plaintiff has sought to propound arguments founded on certain amendments introduced by the Home Building Legislation Amendment Act 2001. It is said that these arguments were raised during the original hearing and were not considered by the Tribunal. The assertion is disputed by the first and second defendants. It is not supported by the content of the written reasons of the Tribunal (indeed, it is inconsistent with them). The plaintiff is recorded as submitting that there was no requirement for a written contract or insurance. The arguments were not raised in the facsimile transmission and accordingly were not considered on the application for rehearing. In the circumstances, I am not satisfied that these arguments were put to the Tribunal. Be that as it may, the arguments are doomed to failure for other reasons. 29 The arguments cannot succeed because the Tribunal did not have before it a cross-claim seeking to recover a quantum meruit pursuant to s 94 of the Act (which requires it to undertake just and equitable considerations). Section 94 offers relief only where there is no insurance as required by s 92. Such a claim is one in respect of which the first and second defendants could be expected to lead evidence and/or make submissions. Accordingly, in any event, I would not come to the view that the plaintiff should now be allowed to advance those arguments. 30 The plaintiff has placed great stress on a subsequent decision made by the Tribunal on 17 December 2002. It involved another claim made by the plaintiff (against Minotti & Anor). The decision turned on its own particular facts (in that case there was in fact an application before the Tribunal for a quantum meruit seeking relief pursuant to s 94 and although there was no insurance, the Tribunal proceeded on the basis that there was a written contract). 31 In the present case, the facts were different. The plaintiff was not propounding a claim pursuant to s 94. It was saying that there was no need for any written contract or insurance. The observations made by the Tribunal (to the effect that the plaintiff was not entitled to rely upon any claims for payment) were made in this context and appear to have been founded on the findings of both the lack of a written contract and the lack of insurance. 32 In my view, for many reasons the submission that the Tribunal erred in overlooking the amendments is misconceived. 33 If there be a need to say so, the present appeal is also futile for other reasons. The plaintiff's arguments have no relevance to either the order that was made by the Tribunal or the not granting of the rehearing. They can relate only to any decision made in respect of any monetary claim made by the plaintiff before it. A close examination of the Summons reveals that any decision made in respect of it is not a subject of this appeal (which challenges only the order for the payment of $3,500 and the not granting of the rehearing application). 34 I have carefully considered all the arguments propounded by the plaintiff and in my view none of them can be said to relate to the deciding of a question with respect to a matter of law in the sense contemplated by s 67 of the Consumer, Trader and Tenancy Tribunal Act 2001 (see inter alia Eather & Anor v Rawson Homes & Anor [2003] NSWSC 439).

35 In my view, the proposed challenge is devoid of merit. It was doomed to failure and should not have been brought. For this further reason, the court would not be disposed to grant an extension of time. It would be futile to do so. 36 Before concluding, I should add that where such a modest amount is in dispute it should not lead the parties to prosecuting an appeal in this Court. If such a matter must be litigated, the legislature should provide a less expensive alternative which does not take up the valuable time of this Court.

37 The Summons is dismissed. If the first and second defendants have incurred legal costs in respect of this appeal, the plaintiff is to pay those costs.

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