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[1999] NSWSC 546
Supreme Court of NSW
1999-06-03
Davies AJ, Allen J
Original judgment source is linked above.
New South Wales Supreme Court CITATION : Batshon v Elias & Ors [1999] NSWSC 546 revised - 29/06/99 CURRENT JURISDICTION : Administrative Law Division FILE NUMBER(S) : ALD 30105/98 HEARING DATE(S) : 3 June 1999 JUDGMENT DATE : 3 June 1999
PARTIES : Samir Batshon v Nabil Elias; Denise Elias; Building Disputes Tribunal JUDGMENT OF : Davies AJ at 1
LOWER COURT JURISDICTION : Building Disputes Tribunal LOWER COURT FILE NUMBER(S) : BPA97/294 LOWER COURT JUDICIAL OFFICER :
Plaintiff - D. Re COUNSEL : Defendants 1 & 2 - M. Gilmour Defendant 3 - Submitting Plaintiff - Stephen Hodges SOLICITORS : Defendants 1 & 2 - C.L. Pacey, Parramatta Defendant 3 - I.V.Knight, State Crown Solicitor, submitting. CATCHWORDS : Judicial review ACTS CITED : Consumer Claims Tribunal Act 1987 (NSW) Archcom Ltd v Consumer Claims Tribunal & Ors (unreported, Administrative Law Division, 29/9/95) CASES CITED : Hales v Consumer Claims Tribunal & Anor (1990) ASC 55-985 Sanford v Marjen Building Contractors Pty Ltd (1992) ASC 56-1248 WD & HO Wills Australia Ltd v Consumer Claims Tribunal (NSW) & Anor (unreported, CA, 23/9/98) DECISION : Application dismissed with costs.
THE SUPREME COURT OF NEW SOUTH WALES ADMINISTRATIVE LAW DIVISION
JUDGMENT 1 HIS HONOUR: These proceedings seek judicial review of an order of the Consumer Claims Tribunal (NSW) made on 28 May 1998 under section 30 of the Consumer Claims Tribunal Act 1987 (NSW) ("the Act") that the plaintiff, Mr Samir Batshon, and a Mr Johnson, pay the sum of $20,175 to Mr and Mrs Elias, the first and second defendants. 2 Section 12 of the Act permits judicial review proceedings to be brought in relation to such an order to be brought on the ground that the Tribunal had no jurisdiction to make the order, or that in relation to the hearing or determination a party to the claim was denied natural justice. The ground now relied upon in these proceedings is that the Tribunal had no jurisdiction to make the order, other grounds not having not been pursued. 3 Under s 10(1) of the Act, the Tribunal has jurisdiction to hear and determine consumer claims which are defined in section 3 to include claims by a consumer for the payment of a specified sum of money. Section 12A defines a building claim to include inter alia: " (a) the payment of a specified sum of money, or ..... (c) relief from payment of a specified sum of money, ..... that arises from a supply of building goods or services, whether under a contract or not, or that arises under a contract that is collateral to a contract for the supply of building goods or services. " 4 The term "building goods and services" is also defined and includes goods or services supplied for or in connection with the carrying out of residential building work. Section 12B provides inter alia that a building claim is to be considered to be a consumer claim. Section 32 of the Act imposes a limitation upon the jurisdiction of the Tribunal, and provides inter alia: " (1) A tribunal has no jurisdiction to make in respect of a particular consumer claim an order or orders in favour of the claimant or, where there are 2 or more claimant, in favour of those claimants if the total of:
(a) the amount or amounts (if any) of money to be paid,
under or by virtue of the order or orders would exceed the prescribed amount. " The amount prescribed for the purposes of s 32 by the Consumer Claims Tribunal Regulations is specified in reg 6(1) as $25,000. 5 Wide and general words are used in the definition of "consumer claim" and of "building claim". It is therefore not surprising that the words "a specific sum of money" which appear in those definitions have been given a wide reading. In WD & HO Wills Australia Limited v Consumer Claims Tribunal (NSW) & Anor (unreported, Court of Appeal, 23 July 1998), the term was held to encompass a claim for a specified, that is, nominated sum, notwithstanding that the amount was claimed by way of unliquidated damages. Similarly in Hales v Consumer Claims Tribunal & Anor (1990) ASC 55-985 and in Sandford v Marjen Building Contractors Pty Ltd (1992) ASC 56-148 the term was held to encompass a net sum due after taking into account items on both sides of the ledger. 6 It matters not that the quantum of the various issues to be considered exceeds the jurisdictional limit of the Tribunal, $25,000, provided that the sum that is sought in the claim is within the jurisdictional limit. This was made clear by Allen J in Hales when his Honour said at 58,855: "It is apparent, therefore, that the jurisdiction is related to the nature of the relief sought by the consumer rather than the cause of action upon which that claim was founded." 7 In Sandford Grove J said at page 57,451: "The jurisdiction of the Tribunal is, as the provisions I have set out show, limited by the order it can make not by the value of the ingredients of the dispute from which proceedings originated." 8 It follows that a claim must specify a sum which is within the jurisdictional limit of the Tribunal; but it matters not that the value of the elements making up the claim may exceed the jurisdictional limit of $25,000, if that sum is within the jurisdictional limit. As Stein JA, with whom Mason P and Meagher JA agreed, in Wills said at page 8: "It [the claim] has to be for the payment of a specified sum of money. The requirement is satisfied if a sum of money is specified in the claim and is within the jurisdictional limit of the Tribunal." 9 In Archom Ltd v Consumer Claims Tribunal & Ors, (unreported, Administrative Law Division, 29/9/95) Simpson J made the same point when her Honour said at page 16: "Whether jurisdiction exists must be determined by reference to the 'claim' made by the claimant....'Claim' is to be equated with what is asserted by the claimant; that is what the claimant, rightly or wrongly asserts. Jurisdiction depends upon the correct analysis of the assertion made by the claimant in the claim form." Provided that a claim asserts on its face a building claim as defined, and provided that the sum specified in the claim is within the jurisdictional limit, the Tribunal will have jurisdiction. 10 In the present case, the plaintiff and Mr Johnson had entered into a contract to undertake residential building works for the defendants, Mr and Mrs Elias. Disputes arose towards the end of the construction. The plaintiff and Mr Johnson ultimately lodged with the Tribunal a claim for the balance of monies alleged to be due under the building contract. For reasons which I need not mention, that claim was withdrawn. 11 On the advice of the referee dealing with that first claim, Mr and Mrs Elias, on 21 November 1997, lodged their own claim with the Tribunal. On its face the claim lodged was a building claim as defined. The claim specified "cost of incompleted works including major defects caused by unqualified tradesmen and lack of proper supervision of the respondent". The claim sought a money order for $25,000. As the claim expressed itself to be a cross-claim requested by the referee, and as it referred to the claim lodged by the plaintiff and Mr Johnson, it could be inferred that items on both sides of the ledger would have to be taken into account in the determination of the claim. 12 The hearing before the Tribunal proceeded on that footing. Ultimately an order was made on 28 May 1998 that the plaintiff and Mr Johnson pay $23,175 to Mr and Mrs Elias on or before 28 July 1998. The reasons for the decision show that the referee took into account both monies agreed to be paid by Mr and Mrs Elias under the building contract and sums held to be due to Mr and Mrs Elias for poor and defective work performed and like matters. Subsequently on 10 July 1998 at the request of the plaintiff under s 33 of the Act, the order was reduced to $20,175 to take account of certain variations to the works which the referee had failed to take into account. 13 It is not in dispute that were those the only relevant facts the Tribunal would have had jurisdiction to make its order that the plaintiff and Mr Johnson pay the sum of $20,175 to Mr and Mrs Elias. 14 The challenge to the jurisdiction has arisen from a circumstance which occurred at the first hearing of the claim on 28 January 1998. At that hearing, Mr and Mrs Elias tendered a statutory declaration by an independent expert Mr T W Dessaix, which specified items for defective and incomplete work and like matters totalling $40,518.75. 15 Handwritten notes of the referee made on that day record: "Explained to C [claimant] - jurisdiction restricted...to $25,000 ... C decided to amend claim to full damage alleged & submit to $25,000 jurisdiction." 16 The referee made a formal order for amendment. The typed order as issued, reads: "The Tribunal allows the claimants to amend their claim as follows: Money order sought $45,000.75 being $40,518.75 for defective building and unfinished work; $750.00 for damage to washing machine and $3,739 for damage to carpet." 17 The plaintiff has given oral evidence in these proceedings that at that conference it was stated clearly that the Tribunal could only award $25,000 but would hear the claim for $45,007.75. In the course of the hearing on that day the claim form lodged with the Tribunal was amended by crossing out the $25,000 specified as the sum for which a money order was sought and by substituting for that sum the sum of $45,007.75. The signatures of the plaintiff and Mr Elias appear next to the amendment. 18 The plaintiff's counsel Mr D Re has submitted that the claim was transformed by this amendment into a claim for $45,007.75, and that once that had occurred, the Tribunal no longer had jurisdiction to deal with the matter. Counsel for the defendant, Mrs M Gilmour, has submitted, however, that it was always clear that the money order sought by Mr and Mrs Elias was limited to $25,000. 19 Although in form Mr and Mrs Elias appeared to make a claim for $45,007.75, I am satisfied that is not the substance of what occurred. It is plain from the referee's notes, and from the evidence given by the plaintiff, that Mr and Mrs Elias at all times restricted the monetary sum for which an order was sought to $25,000. Indeed, the referee did not have power to allow Mr and Mrs Elias to amend their claim so as to claim any sum in excess of $25,000, as the referee well knew. 20 All that occurred, in substance, was that the expert's report was treated as setting out particulars of the items which Mr and Mrs Elias claimed as falling on their side of the ledger. Notwithstanding that the sum specified in the formal claim form was amended, Mr and Mrs Elias made it plain to the plaintiff and to the referee that they submitted to the $25,000 jurisdictional limit, that is to say that the money that order they sought was that sum of $25,000. In my opinion, the substance of the claim was not altered by the inelegantly expressed order of the referee. All the parties and the referee were aware that the claim for a money order was limited to $25,000. 21 In these circumstances, the Tribunal did not lack jurisdiction to hear and determine the claim and to make the order which it did on 28 May 1998 and on 10 July 1998. For these reasons, the application to the Court must be dismissed with costs.
Last Modified: 06/30/2000 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.
Batshon
Elias & Ors