Brincat v Consumer, Trader and Tenancy Tribunal and Anor

Judgment 1RS HULME J : In these proceedings the Plaintiffs seek to challenge a number of decisions of the Consumer, Trader and Tenancy Tribunal (hereinafter referred to as the "CTTT") dealing with the issue of costs in proceedings before it. The decisions challenged are of 16 October 2008, 20 May 2009, and 5 November 2009. The first two of these decisions are challenged on the basis of a denial of procedural fairness, the last is challenged on that basis, jurisdictional error and/or error of law on the face of the record, and that the CTTT was functus officio at the time. In part this latter claim is based upon the decision of 20 May being allowed to stand. 2In this Court the CTTT has filed a submitting appearance except as to costs, and it will be convenient to generally refer to Mr and Mrs Schneider as "the Defendants". 3As much turns on the history of proceedings before the Tribunal, it is desirable to set out the salient events that led to or occurred in those proceedings:- (i) The Plaintiffs were landowners. The Defendants were a firm of builders who entered into a contract with the Plaintiffs to build a house on the Plaintiff's land. Shortly prior to completion of the house disputes arose. (ii) In early 2007, the Plaintiffs commenced proceedings in the CTTT against the Defendants. The Defendants defended that claim and cross-claimed against the Plaintiffs. A number of events occurred during the course of the proceedings including amendment and the service of Calderbank letters but the detail of these and of the various claims can be either ignored or at least deferred for the moment. (iii) On 8 and 9 May and 28 and 29 July 2008 the CTTT proceedings were heard by a CTTT Member, Dr Smith. It would seem that at the conclusion of the hearing, Dr Smith ordered that the Plaintiffs file submissions by 19 August and the Defendants file theirs by 9 September and that no orders were made for submissions in reply. There is no evidence before me that any request to file submissions in reply was made at that time. (iv) The Plaintiffs' submissions were filed and served on 26 August 2008. Apart from some 25 pages being reports of 2 previous Court of Appeal decisions, the submissions extended to some 13 pages. Save and except for what was said in the 2 concluding paragraphs, there was no reference to legal costs. What was said in those paragraphs was:- 81. It is submitted overall as a result of the above, that the builder should pay the Applicants $105,965 plus the legal costs of this hearing, together with the costs of the engagement of the various experts by the Appellants. A schedule as to the cost of engaging experts is attached. 82. It is further submitted that the Respondents' application against the Applicants should be dismissed in its entirety with costs awarded to the Applicants. (v) The schedule of the cost of experts referred to 3 persons, broke the costs of 2 of them down into 4 categories and made a total claim of around $17,600. (vi) The Defendants' submissions were filed and served on 26 or 29 September 2008. They extended to some 22 pages in addition to copies of 4 previous decisions and an extract from a text book, all of which were relied on in the body of the submissions. Again, it was only in the last paragraph of those submissions that there was any reference to costs. The submissions concluded:- It is submitted that the claim by the Owners as to defects would be limited to the defects agreed to by the experts and at the costs as agreed to by the Builder or that the Builder be able to remedy the defects. The Builder is entitled to succeed in his claim for the final progress payment in the sum of $18,674.30, the variations claimed in the sum of $24,491.73 plus interest in accordance with the Contract, and costs. (vii) Mr Jurd, the solicitor for the Plaintiffs, thought that some submissions in reply should be made on behalf of the Plaintiffs. On 2 October 2008 he wrote seeking, and on the following day obtained, the consent of the solicitor for the Defendant, Mr Hanrahan, to approach the CTTT to obtain permission to make submissions in reply. (viii) On 7 October 2008 Mr Jurd wrote to the CTTT seeking that permission. (ix) On 13 October Mr Jurd wrote again to the CTTT, referring to his letter of 7 October and asking whether submissions could be made within 7 days. (x) 16 October 2008 is the date of a document containing reasons and orders of Dr Smith. The parties were not informed of this until some time later. (xi) On 22 October, 12 November and 26 November, Mr Jurd wrote again, asking for permission to make the submissions or for the matter to be re-listed. He repeated the request in a phone call to the CTTT on 26 November. (xii) On 1 December in another phone called he was advised by an employee of the CTTT that the CTTT would only consider one submission on costs from each party. Also on 1 December the CTTT wrote saying that on 27 November the Member had given a direction to the CTTT registry to let the parties know to that effect. (xiii) On 1 December Mr Jurd wrote to the CTTT asking whether the CTTT Member had asked for submissions on costs and repeating his earlier request for the matter to be re-listed. (xiv) On 5 December 2008, Mr Jurd wrote again, asking when costs submissions were required and again raising his prior, and still unanswered, correspondence. (xv) On 22 December 2008, Mr Jurd wrote yet again to the CTTT complaining that he had received no response to earlier correspondence, expressing concern that he was being denied an opportunity to address all submissions made by on behalf of the Defendants and seeking a response to the matters he had previously raised. Again his request was in vain. (xvi) Mr Jurd seems to have kept the Defendants' solicitor generally informed of the communications he was having with the CTTT. On 13 January 2009, he faxed to the Defendants' solicitor copies of the CTTT notice of 1 December referred to in sub-paragraph (xii) above and his letters referred to in sub-paragraphs (xiii), (xiv) and (xv). (xvii) The next event seems to have occurred on 26 May 2009 when the CTTT wrote enclosing "a copy of the Final Determination of Costs". That document, signed by Dr Smith and dated 20 May 2009, was in the following terms:- FINAL DETERMINATION OF COSTS When written reasons were handed down in December 2008 my preliminary determination on the question of costs was indicated. I allowed the parties time to file submissions on costs if they were not satisfied with my preliminary determination. I have considered the submissions, including one to make further submissions or submission in reply. I do not think my adjudication would be assisted by hearing further from the parties. Having considered all of the material, I confirm my initial findings and lift the stay on the orders handed down with the written reasons. (xviii) In response to a letter of 27 May from Mr Jurd saying in effect that he had not previous knowledge of "written reasons" or a "preliminary determination", on 28 May the CTT wrote enclosing a copy of the "reserved decision and orders from the hearing of the application on 28 and 29 July 2008". The enclosed document containing reasons and what purported to be "orders" was signed by Dr Smith and dated, not in December as the CTTT letter of 26 May indicated, but 16 October 2008. (xix) In the reasons Dr Smith referred to what one may infer were the various items the subject of claim or counterclaim, indicating the extent to which they were allowed and providing some brief explanation of why. His conclusion and "orders" were expressed as follows:- Conclusion The final result is this. The only item I allow in favour of the owner is $26,481.71 for the defects and incomplete works in the Scott Schedule. The fireplace, brickworks, drainage and PC items and other claims do not succeed. In favour of the builder I award the final progress payment of $18,674.00 and $7,744.80 of the variations claimed, a total of $26, 418 80. The difference is $62.91 payable by the builder to the owner. The claims all but cancel each other out. Nevertheless many of the claims brought by the owners have not succeeded. In the circumstances the appropriate order would seem to be that the owners pay one half of the builder's costs as agreed or assessed. Orders