Constable v Anvic Holdings & Anor [2003] NSWSC 471 | Case summary

JUDGMENT 1 MASTER: The disputes between these parties have had a long and unfortunate history. The litigation commenced in the Fair Trading Tribunal on 9 April 1999. Apart from the hearings between the parties, I have already heard two earlier appeals. These proceedings bring yet a third appeal. 2 It arises from a hearing before the Consumer, Trader & Tenancy Tribunal (the Tribunal) on 9 December 2002. On 20 December 2002, the Tribunal made the following orders:- "1. I direct the respondent to pay the applicant $25,000.00 on or before 31 January 2001 (sic). 2. I direct the respondent to pay the applicant's costs, as agreed or assessed, of Tribunal proceedings up to and including 12 December 2001; the applicant is to pay the respondent's costs of Tribunal proceedings from and including 13 December 2001 as agreed or assessed." 3 The Tribunal gave written reasons for the decision. 4 I do not propose to repeat what has been set forth in the earlier judgments. It suffices to say that the applicant and his wife entered into a building contract with a builder for the construction of a residence on their property at Palm Beach. 5 For the purposes of the carrying out of these works the plaintiff purchased from the first defendant certain terra cotta tiles. It was common ground that the function of the first defendant was to supply the tiles only. It did not play any part in their installation. The tiles proved to be unsuitable and the plaintiff brought proceedings in the Tribunal for compensation. 6 The dispute before the Tribunal concerned the question of whether the claim was a "building claim" under the Home Building Act 1989 or a "consumer claim" under the Consumer Claims Act 1998. 7 If it was a "building claim" it was common ground that the plaintiff was entitled to recover $66,659. If it was a "consumer claim" it was common ground that the plaintiff was entitled to recover only $25,000 (the jurisdictional limit under the legislation). 8 The Tribunal determined that the claim was a consumer claim and not a building claim. 9 The Tribunal addressed the definitions of "building claim", "building goods or services" and "residential building work". 10 It addressed the submission put by the plaintiff. The reasons contain the following:- "The applicant says that 'work' is the carrying out of labour for reward, and that the relevant residential building work in this case was the work done in supplying the tiles to the building site. I do not accept this submission." 11 In Collings Homes v Head & Ors [2002] NSWSC 1219, I said:- "24 For present purposes, it suffices to merely refer to those provisions contained in the definitions which are relevant to this matter. A "building claim" is any one of the remedies specified in (a) to (e) of subsection (1) of s 84 that arises from a supply of building goods or services whether under a contract or not. The section defines "building goods or services" as goods or services supplied for or in connection with the carrying out of residential building work supplied by the person who contracts to do that work. Section 3 defines "residential building work" as any work involved in or involved in co-ordinating or supervising any work involved in the construction of a dwelling." 12 The plaintiff proceeds on an Amended Summons filed on 10 March 2003. It sets out 5 grounds of appeal. In substance an appeal is brought against both of the orders made by the Tribunal on 9 December 2002. 13 It is common ground that the appeal is restricted to error of law. The plaintiff bears the onus of satisfying the court that there was error of law which justifies the disturbing of the decisions made by the Tribunal. 14 In my view, in making order 1, the Tribunal reached the correct decision. I accept the stance taken by the first defendant. I regard the challenge that was brought to this decision as being manifestly hopeless. What was done by the first defendant cannot be described as "building goods or services". The tiles were not supplied by a person who had contracted to carry out "residential building work". 15 Shortly before the commencement of the hearing of this appeal, the plaintiff wisely abandoned the challenge brought against this decision.

16 However, the plaintiff maintained his challenge to the order made as to costs. This was the only question ultimately argued in the appeal. 17 Before proceeding further, I should mention certain matters which somewhat complicate the position. The Fair Trading Tribunal has ceased to exist. It has been replaced by the Tribunal. It seems to be common ground that the present proceedings are governed by the Consumer, Trader and Tenancy Tribunal Act 2001 (the Act). It may be that the provisions of the Act also governed certain of the proceedings before the Tribunal. 18 The Tribunal dealt with the question of costs without express regard being had to any of the provisions of the Act. It is common ground that the Tribunal received submissions put on the basis that it had a discretion (unfettered by statute) to deal with the question of costs and that it dealt with the question on that basis. 19 The awarding of costs by the Tribunal is governed by s 53 of the Act and the Consumer, Trader and Tenancy Tribunal Regulation 2002 (the Regulation). Section 53 provides inter alia that the Tribunal, may in accordance with the Regulation, award costs in relation to any proceedings. Part 5 of the Regulation deals with costs. In the circumstances of the present case, the relevant provisions may be found in cl 20. I merely mention these provisions for completeness as they may be put aside for the purposes of this appeal. 20 It was common ground that the court should deal with the question of costs in this appeal on the same basis as litigated in the Tribunal. In adopting this course, the court has dealt with the appeal on the issues selected by the parties. 21 The Tribunal dealt with the question of costs on pages 4 - 6 of the written reasons. I should mention one matter prior to looking at the matters taken into account by the Tribunal. Before the Tribunal, there was an issue as to whether or not an order could be made in respect of the costs of the whole of the proceedings before it (as opposed to the costs of what was dealt with on 9 December 2002). It is common ground that this question has no relevance for the purposes of the present appeal. 22 The Tribunal had regard to various matters. I shall mention certain of them. It had regard to what was described as "the curial history of this matter". It also had regard to correspondence between the parties (including a facsimile transmitted on 12 December 2001). Further, it had regard to the result in the proceedings. 23 The Tribunal recorded a summary of the curial history. There was reference to certain of the correspondence and the submissions made in respect thereto. The Tribunal made the following observations:- "I am satisfied that on 12 January 2001 (this appears to be an error and should read 12 December 2001) the respondent had offered to pay compensation to the applicant in the amount of $25,000.00. The applicant is only successful in that amount." 24 It appears that a number of communications passed between the parties. There is dispute between counsel as to whether certain of them were placed in evidence before the Tribunal. 25 What is clear is that the Tribunal had before it correspondence from the first defendant which made an open offer. It is also clear that this correspondence offered to pay the sum of $25,000 to the plaintiff in full and final satisfaction of his claim. It is also clear that in it the first defendant expressed the view that it was quite obvious that the claim was not a building claim and that the building claim component of the original award would not be successful. Further, it is also clear from it that the offer was intended to have cost implications. 26 The plaintiff attacks the decision on the basis that there was error in the exercise of the discretion had as to costs. He relies on what was said in House v The King (1936) 55 CLR 499 at 505. For present purposes, I shall put aside the question of whether or not error in the exercise of the discretion necessarily gives rise to an error of law. 27 Before proceeding further, I should make a prefatory comment about the submissions advanced on behalf of the plaintiff. It appears to me that they overemphasise the importance given to the open offer (and what happened in relation to it) in the discretionary exercise carried out by the Tribunal. In submissions, it was sought to categorise the open offer as a Calderbank letter and various authorities dealing with such a letter were referred to the court. 28 In my view, these matters were merely treated as being part of the relevant material and that they were considered in the context of what was regarded as the other relevant circumstances. In my view, there was no error in so doing. 29 I have had regard to all of the submissions (both written and oral) made on behalf of the plaintiff. I shall now expressly deal with certain of them. 30 It is said that the open offer was ambiguous in the sense that it did not make clear whether or not it was inclusive of costs. In my view, the offer was unambiguous. It offered to pay the sum of $25,000 in full and final satisfaction of the claim. It did not seek to address the question of costs. 31 It was said that the Tribunal erroneously found that it was a "plus costs offer". In my view, that submission is erroneous. The written reasons record a finding that the first defendant had offered to pay compensation to the plaintiff in the amount of $25,000. 32 It was said that the Tribunal failed to take into account that the plaintiff had sought clarification as to the offer and that the first defendant had failed to clarify the position. There is dispute between the parties as to whether or not the correspondence relied on by the plaintiff for this submission was in fact before the Tribunal. The written reasons do not record any submission to the effect that these matters should be taken into account having been made. In my view, whether or not that material was before the Tribunal, the submission is of no substance in the circumstances of this case. Any failure to refer to them would be of no significance. 33 It was also said that the decision was plainly unjust. In my view, that is not so. 34 I am not satisfied that there was any discretionary error. I am not satisfied that there was any error of law. In my view, the decision produced a just result between the parties. I am not satisfied that it should be disturbed. 35 At least by December 2001, the first defendant had raised the issue that the plaintiff's claim was clearly not a building claim and that the plaintiff was only entitled to recover a sum of $25,000 (a sum which it offered to pay). The response of the plaintiff was to pursue the proceedings and prosecute what was a manifestly hopeless case. The issue that was litigated and determined by the Tribunal was his contention that his claim was a building claim. He wanted to recover $66,659. It was doomed to failure and the first defendant was the successful party on this issue. His ill-considered conduct brought about unnecessary hearings and caused the first defendant to incur costs in and about those hearings. 36 I consider that the plaintiff has failed to discharge the requisite onus. Accordingly, the appeal fails. 37 The Summons is dismissed. The plaintiff is to pay the costs of the Summons. 38 The first defendant seeks an order that the costs be paid on an indemnity basis. The plaintiff has asked that any such question be reserved and I so order.

Constable v Anvic Holdings & Anor

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Judgment (9 paragraphs)

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