CHAND v LIFESTYLE HOMES NSW PTY LTD [2010] NSWCA 135 | Case summary

7 June 2010 Ajay CHAND v LIFESTYLE HOMES NSW PTY LTD Judgment 1 BASTEN JA: This matter commenced as a dispute in relation to a residential building contract, which was initially heard in the Consumer, Trader and Tenancy Tribunal ("the Tribunal"). The decision of the Tribunal in favour of the builder dismissed a claim by the owners (Mr and Mrs Chand) and ordered them to pay an amount of almost $125,000 to the builder (the respondent). Appeal to District Court 2 The right of appeal from the Tribunal arises under s 67 of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) ("the CTTT Act"). A party dissatisfied with a decision of the Tribunal with respect to a matter of law may appeal against the decision. In its original form, the appeal came to the Supreme Court and was dealt with in the Common Law Division. From 1 September 2008, appeals have gone to the District Court: Courts and Crimes Legislation Amendment Act 2008 (NSW), Sch 5. 3 There is an issue about the precise scope of the appeal available from the Tribunal pursuant to s 67. The scope has been considered in the light of the privative clause in s 65 and the power under s 66 to refer questions of law to the Supreme Court. (Section 66 was not amended when the power to hear appeals with respect to matters of law was transferred from the Supreme Court to the District Court.) 4 Difficulties with the scope of the right of appeal were ameliorated to some extent by the availability in the Supreme Court of relief under s 69 of the Supreme Court Act 1970 (NSW) in the exercise of the supervisory jurisdiction of the Court. Doubts had been expressed, however, about the power of the District Court to grant such relief. It is possible, for example, that some questions of procedural fairness will involve decisions with respect to a matter of law, whereas some may not. 5 While doubts as to the precise scope and extent of the right of appeal from the Tribunal are unfortunate, they are inevitable and will ultimately be resolved by higher authority. It is, however, most undesirable that the savings in costs and the demands on other resources, which may be reduced by recourse to the Tribunal, should be nullified by the possible need to pursue rights of appeal and rights to relief in the nature of prerogative writs in different courts. Appeal from District Court 6 There is also some doubt as to whether an appeal lies to this Court from a decision of the District Court under s 67 of the CTTT Act. The proceedings in this Court were commenced by a notice of appeal which originally relied upon s 142N of the District Court Act 1973 (NSW). Following an earlier directions hearing on 24 May 2010, the appellants accepted that this provision did not have any relevance to the appeal they sought to bring. (It related to an entirely different jurisdiction of the District Court.) They therefore contended that their right of appeal lay under s 127 of the District Court Act, which provides a general right of appeal with respect to a judgment or order in an "action". One question which must now be confronted, but which has only arisen since the 2008 amending Act, is whether an appeal to this Court is available from the judgment and orders of the District Court in hearing a statutory appeal from the Tribunal. Review proceedings 7 In order to avoid failure on a jurisdictional ground, the Court was informed that a summons had been (or would be) filed under s 69 of the Supreme Court Act, challenging the orders made in the District Court. The proceedings so commenced are not before me today, but clearly they should be listed jointly with the appeal, in the future. 8 I am further informed that, since the directions hearing on 24 May 2010, the appellants have commenced separate proceedings in the Common Law Division seeking to review the decision of the Tribunal, invoking the powers of the Court under s 69 of the Supreme Court Act. This was, in effect, a belated recognition of what appears to be the bifurcated jurisdiction to challenge decisions of the Tribunal. (Because the appeal to the District Court was originally commenced in the Supreme Court, but transferred to the District Court in compliance with the 2008 amending Act, the new proceedings may be seen, in effect, as an attempt to reinstate part of the proceeding originally commenced in the Supreme Court.) 9 This unhappy state of jurisdictional confusion cannot be allowed to remain. If, as seems possible, the proceedings in the Common Law Division were to be determined and one party were to seek to appeal to this Court, it would be desirable, if not necessary, that any such appeal should be heard together with the proceedings presently before this Court. That would mean standing over the further prosecution of those proceedings to allow resolution of the proceedings in the Common Law Division. That would give rise to unfortunate delay. It would also significantly increase the costs to the parties which must already be too high, having regard to the nature of the issues in dispute and the statutory scheme for resolving such disputes, at least in the first instance. Transfer to this Court 10 The alternative course is to transfer the proceedings from the Common Law Division to this Court, so that all matters may be heard and determined together by this Court in one hearing, at an early date. This is not an entirely satisfactory solution, but it was that proposed by the appellant and that which counsel for the respondent ultimately accepted was most likely to give rise to an early resolution of the litigation. Accordingly, it is the course apparently required by s 56 of the Civil Procedure Act 2005 (NSW). 11 The summons filed in the Common Law Division is not before me, nor is the affidavit in support, which presumably sets out the relevant grounds. Nevertheless, I am told by counsel that the grounds relied on conform to those relied upon in the appeal, but which may not be available in the appeal. In those circumstances, a transfer seems desirable. 12 There is a further question as to whether this Court has power to make such an order, or should do so. The powers of transfer between courts to be found in Pt 9 of the Civil Procedure Act do not apply to transfers within the Supreme Court. The Uniform Civil Procedure Rules 2005 (NSW) provide for removal from a Division to this Court, but do not in terms provide for a judge of this Court to order removal from a Division: r 1.21(1). 13 Rather than putting the parties to the expense of having the matter relisted in the Common Law Division, and given the fact that both parties agree with the course to be taken, I have requested the Chief Judge at Common Law to transfer the proceedings in the Common Law Division this Court. That course will be undertaken by an order made in chambers without the attendance of the parties. Other matters 14 Some further matters were raised during the hearing which should be adverted to. First, counsel for the appellants handed up a copy of an amended notice of appeal which was said to give effect to the discussion as to the proper form of the notice which took place at the hearing on 24 May. Counsel for the respondent said that an amended notice of appeal had already been filed and that the current notice differed from that filed. Rather than resolve the question as to whether any further amendment were necessary, and if so whether leave should be given, I returned the notice to counsel for the appellants. If further amendment of the amended notice of appeal is required, that can be dealt with by the Registrar. 15 Secondly, counsel for the respondent handed up a copy of a subpoena issued by the appellant to a third party, being an insurance company. The subpoena directed the company to provide the documents to the private address of the appellants. A subpoena in that form was inappropriate and should not have been issued. However, as I understand that documents have already been produced (both at that address and to the Court) I indicated that no further directions would be given in that respect. 16 Thirdly, counsel for the respondent sought to hand up a letter sent, in accordance with direction 2(2) given on 24 May 2010, advising the appellants that the respondent objected to the competency of an appeal under s 127 of the District Court Act. There was no direction that such advice should be filed with the Court, but it is appropriate that the respondent file a notice of objection to the competency of the appeal. Conclusions 17 Accordingly, the Court makes the following orders:

CHAND v LIFESTYLE HOMES NSW PTY LTD

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