Eather & Anor v Rawson Homes & Anor [2003] NSWSC 439 | Case summary

JUDGMENT 1 MASTER: The plaintiffs and the first defendant were parties to a building contract (Plain English Building Agreement Edition 11). The contract was made on 22 April 1999. The first defendant was the builder. The plaintiffs were the owners of the subject property. 2 Construction commenced on 6 August 1999. Dispute arose between the parties concerning inter alia the colour of the brickwork. On, inter alia, 9 November 1999 the plaintiffs informed the first defendant that they intended to seek advice from the Department of Fair Trading concerning the brickwork. The first defendant responded by acting to suspend the works as per clause 6 of the building contract "until further advice is received" (see letter dated 10 November 1999). 3 The plaintiffs made application to the Fair Trading Tribunal (the Tribunal) seeking inter alia demolition. An interim decision was given by the Tribunal on 30 June 2000 dismissing that part of the claim that related to the colour of the brickwork. 4 There was a further hearing before the Tribunal. This saw the parties reaching agreement as to part of the plaintiffs' claim (to rectify defects in the brickwork and other matters). The Tribunal heard a claim for damages made by the first defendant. On 9 November 2000, it ordered the plaintiffs to pay damages to the first defendant. An application for rehearing made on 27 November 2000 was successful (13 February 2001). 5 On 5 February 2001, the first defendant notified the plaintiffs that construction was nearing completion and gave a Notice of Practical Completion. 6 On 11 April 2001, the first defendant sent the plaintiffs a copy of an Interim Occupation Certificate issued by the council on 21 March 2001. On 17 April 2001, the plaintiffs sent a second Notice of Default to the first defendant. Between 21 March and 19 April 2001, the first defendant removed previously delivered items from the subject property (hot water service, oven, cook top and range hood). These items have been referred to as white goods. On 28 June 2001, the plaintiffs moved into the house. 7 The rehearing took place during January and February 2002. There were three hearing days. 8 I shall now turn briefly to the issues that were before the Tribunal. The plaintiffs made monetary claims in respect of defective work and delay. The first defendant's Cross-Claim advanced three causes of action. There was a claim for increased costs. There was a claim for an unpaid final progress payment and interest. There was a claim for the extra costs of a supervisor's time allegedly spent attending to lists of defects provided by the plaintiffs. 9 Generally speaking, the plaintiffs were partly successful in their defective work claim ($7,500). The Tribunal disallowed that part of the claim which related to costs arising from delay. 10 The first defendant was partly successful in respect of its claim for increased costs ($3,165.60). It was successful in respect of the claim made for the progress payment ($39,610) and interest. It failed in respect of the claim for the costs of the supervisor's time. 11 Three of the matters regarded as being in issue by the Tribunal were the questions of whether the builder was entitled to suspend the works, whether practical completion had been achieved and whether the builder was entitled to payment of its progress claim. 12 Another such issue was:- "1. What are the pleadings on which either side is entitled to rely for the purposes of advancing their respective cases and their submissions?" 13 The decision of the Tribunal was handed down on 18 April 2002. Written reasons were given. One section of the reasons had the heading "Findings" and consisted of numbered paragraphs. Orders were made which required inter alia the plaintiffs to pay moneys and costs. By consent, certain matters were not determined but reserved for potential future litigation (see order 4). 14 The plaintiffs bring an appeal to this Court. They rely on an Amended Summons filed in court on 1 August 2002. It sets out 20 grounds of appeal. All are pressed. They challenge inter alia the principal findings made by the Tribunal. The hearing extended over three days. Numerous submissions have been made (oral submissions were made on behalf of the plaintiffs and both oral and written submissions were made on behalf of the first defendant). It would be a daunting task to expressly refer to all of them and it is not necessary to do so. Although regard has been had to all of the submissions, I shall only expressly refer to certain of them. 15 Legislative changes, subsequent to the making of the application, have seen the Tribunal cease to exist. It has been replaced by the Consumer, Trader and Tenancy Tribunal (CTTT). An appeal from CTTT is restricted to the decision of a question with respect to a matter of law and denial of procedural fairness. Initially, there was common ground as to the scope of the appeal. Later, the plaintiffs changed their stance and made alternative submissions. I shall return to these matters in due course. 16 Before proceeding further, I should mention that the view has been taken that in appeals of this nature the court should not be too demanding when it is considering questions such as inter alia the sufficiency of the expression of reasoning process. 17 I should add that, in this particular case, the court experienced great difficulty in understanding inter alia the findings of the Tribunal by reason of gross deficiencies in what was put forward as reasons. 18 I now turn to the grounds of appeal. In the light of the view ultimately formed, it became unnecessary to express a final view on all of the grounds. 19 Grounds 10 - 17 relate to the plaintiffs' claim. These were the matters first addressed by the plaintiffs. All but ground 17 relate to defective work. There were 75 items of alleged defective work. The issues concerning the items were sought to be defined by a Scott Schedule. The terms in which the disputes were couched had the potential to create their own problems. 20 I turn to ground 10. The relevant passages appear in paragraph 6.2 of the findings. The Tribunal found that 26 of the 75 items required some form of rectification and that the sum of $10,259 represented the reasonable market cost for the plaintiffs to have those items rectified. 21 The Tribunal had earlier found that there was a complete breakdown of the relationship between the parties and accordingly it would merely be productive of further disputes to order the first defendant to carry out rectification work. 22 It found that the rectification could have been done by the first defendant at a cost of $5,500. It decided to reduce the sum recoverable to the sum of $7,500. This was said to be done out of fairness to the first defendant and to ensure that it was not unreasonably disadvantaged by the decision not to make work orders. 23 The plaintiffs say that this gave the first defendant a credit for work not carried out and which it would not be ordered to carry out. It was further said that the end result was an assessment made without evidence and not in accordance with the principles applicable for the assessment of such damages (the plaintiffs should have been placed in the position they would have had but for the breach). 24 Apart from disputing liability (a submission not open to the first defendant in this appeal), the first defendant takes issue with what was said by the plaintiffs. 25 In my view, the assessment was arbitrary in nature and not an application of legal principles. For present purposes, I need not further pursue the matter. 26 I now turn to ground 11. This ground related to a further 10 of the 75 items. 27 It is said that the Tribunal simply failed to deal with any of them. Disputes had been referred to experts. The experts had reached agreement in relation to 8 of the items (that they could be satisfied by certificate). The 9th item (51) concerned a claim in the order of $28,000. It is said that it had not been resolved by the experts and remained in issue. 28 It appears that the plaintiffs had sought consent to certain proposed orders. This formed part of a submission made to the Tribunal. It appears that the first defendant responded by not consenting to the proposed orders. It provided certain certificates, which the plaintiffs say did not deal with all of the matters and in any event were unsatisfactory. The first defendant says that where certificates were required they were provided and that although it was not necessary to do so, the Tribunal did address these matters in paragraph 6.4 (b) of the findings ("Floor Slab and Structure"). 29 Item 51 required that the roof be sarked and there was issue between the parties as to whether sarking was required. Item 65 (which related to painting of rectified work) was regarded by the first defendant as a general note. 30 Apart from what appears in paragraph 6.4 (b), there is no reference to any of these items. It may be that those observations do have application to items in respect of which structural engineer certification was required. However, it is far from clear. In any event, there is no reference to items 51 and 65. To the extent that they needed to be dealt with, it appears that no determination was made. 31 I now turn to ground 12. The relevant passages appear in paragraph 6.4 (a) of the findings. 32 A finding had been made that in breach of the contract, the first defendant had installed plastic water services instead of copper water services. There was evidence that the cost of rectifying this problem was $15,000. 33 The Tribunal found that it was not practical to replace the entire water supply. It allowed $1,500 to enable the plaintiffs to make reasonable adjustments to the water supply system. 34 This was said to be another finding made without evidence and without sufficient disclosure of reasoning process. Further, it is said that it produced a result which had not been sought by the parties in submissions. Accordingly, there was a denial of procedural fairness. 35 The first defendant says that it was not contractually bound to provide copper water services. Whilst the finding made by the Tribunal is not entirely clear, it can be read as a finding that the first defendant was bound to provide such services and that the plaintiffs were entitled to damages. 36 It is unclear what "adjustments" were contemplated by the Tribunal. It was not a matter litigated by the parties. There was no evidence on which the assessment could have been made and how the Tribunal came to the figure was unclear. 37 Apart from the insufficient reasons, inter alia there has been clear denial of procedural fairness and misdirection. 38 I now turn to ground 13. The matter in issue was referred to in paragraph 6.4 (b) of the findings. The relevant passage in the findings is as follows:- "In regard to the floor slab and other structural issues (eg. Item 44) I find that the Applicant has no entitlement. In making this finding I note that there is no evidence of any significant structural failure at the Dwelling and that copies of certificates of adequacy signed by the structural engineers Donovan Associates are available and have now been provided to the Applicants." 39 It is a ground which involves the sum of $370. It is said that the Tribunal failed to deal with that part of item 44 which concerned cement rendering and merely dealt with structural issues. 40 Item 44 does not expressly refer to cement rendering. However, it is incorporated by reason of the references therein. Whilst the position is far from clear, in my view, it appears as though the Tribunal may not have made a determination in respect of it. 41 I now refer to ground 14. The matter in issue is dealt with in paragraph 6.4 (c) of the findings. It concerns the sum of $8,000. The relevant passage in the findings is as follows:- "In regard to the Applicants claim for site drainage (items 52, 53 and 58) I find that the Applicants have no entitlement in this regard. I accept the Respondents submissions that the provision of any such drainage was not part of the scope of work contemplated in the Contract. In making this finding I note that paving and landscaping on the site has been undertaken by the Applicants. At no stage did they submit any probative evidence that this work was not their responsibility alone." 42 The concept of "Site Drainage" seems to be one adopted by the Tribunal to describe the nature of the dispute on this issue. The contractual material contained provisions dealing with surface drainage and stormwater drainage. There was a plan dealing with site drainage. The nature of the dispute has to be gleaned from items 52, 53 and 58. 43 This ground relates to matters which are redolent with confusion. The court has been referred to contractual material (including an expert's report (Mr Frasca) and what is said to be an approved plan). The issue between the parties was whether or not the items were covered by the building contract. The thrust of what was said on behalf of the first defendant to the Tribunal was that the work fell within the concept of landscaping and was therefore not the builder's responsibility. 44 What was said by the Tribunal was unhelpful in disclosing the reasoning that led to its finding. However, it does convey a mistaken view of the applicable law. It was a decision that involved the Tribunal in the task of the construction of the contractual material. Whether or not it engaged in that task is unclear. The observations do suggest that regard was had to extraneous matters (the separate matters of paving and landscaping and the fact that the work relating to the same had been undertaken by the plaintiffs). Further, there is a tantalising observation as to a failure to "submit any probative evidence that this work was not their responsibility alone". 45 I now turn to ground 15. The relevant material appears in paragraph 6.4 (d) of the findings. This is a claim for $560. In substance what is said was that the contract required the supply of downpipes having a diameter of 6 inches and that the builder supplied downpipes having a diameter of 3 inches. 46 The first defendant's case was that the downpipes were not available and that it installed downpipes that performed as well as those specified. 47 This approach can only address the question of quantum. It does not address the question of liability, which was a matter of construction. 48 The findings contain the following:- "In regard to the issues involving downpipes (item 56 and 75) I find that the Applicant has no entitlement. Notwithstanding that the Respondent has used another profile of downpipe that (sic) that specified I find that there is no probative evidence that the downpipes installed are not suitable for purpose or are not functioning adequately." 49 The disclosure of reasoning process has its shortcomings. It may be that there was a finding in favour of the plaintiffs on liability and a finding of no damage. If so, there has been error in the approach to the assessment. At best, the matters of suitability and functioning would only be some of the relevant matters. It is another instance of misdirection. 50 I now turn to ground 16. This is dealt with in paragraph 6.4 (e) of the written reasons. It concerns $3,000. 51 The claim related to the failure of the builder to provide a hot water service, oven, cook top, range hood, garage roller, shutter motors and fly screens. The proven costs to the plaintiffs of providing these items was $6,860. Despite this, the Tribunal allowed a credit of $3,000 in respect of the items. The findings contain the following:- "……………..I have taken into account that the majority of these items were installed by the Respondent, but that the Respondent (sic) had wrongfully refused to accept handover of the Dwelling at the time when it was completely reasonable for them to do so. I also accept that the Respondents had good reason to remove the installed whitegoods once it became clear that the Applicants were continuing to refuse to accept handover. The result is that the Respondents are now left with a number of expensive second hand goods of diminished value which it (sic) may or may not be able to use elsewhere. I find that the allowance of $3,000.00 against all uninstalled items is therefore fair and equitable, and appropriate in all the circumstances." 52 The first defendant now says that there was no liability in respect of the whitegoods. Such a submission is not open to it in this appeal. The Tribunal does not appear to have made any decision on the question of liability. Perhaps, liability was assumed by the Tribunal. The Tribunal appears to have sought to reach what it considered to be a fair result in the circumstances rather than address the real issues. It is another instance of misdirection. 53 The plaintiffs also complain that the cost of these items is also included in the amount of the progress claim. This may well be the case. 54 I now turn to ground 17. This matter concerned a sum in the order of $3,350. It related to a claim for damages in respect of costs incurred by reason of delay in the completion of the contract. The plaintiffs had incurred rent and additional removalist and storage costs during a period of delay following 15 February 2001. 55 The claim is dealt with in paragraph 7 of the findings. The relevant passage is in the following terms:- "I find that the Applicants cross (sic) claim must fail in its entirety for the reasons set out in this determination. Having themselves brought about the suspension of the Works by their conduct in bringing unsuccessful protracted proceedings in the Fair Trading Tribunal, I find that they alone should be held responsible for any additional costs which they may or will incur as a result. ……………………………………………….." 56 The purported suspension arose out of the dispute over the colour of the bricks. It took place on 10 November 1999. 57 The claim was founded upon alleged breach of warranty (clause 30 (d) ). The contract stipulated completion of the works within 25 weeks. At the time of the suspension, 14 weeks had elapsed. 58 Although the dispute concerning the colour of the bricks had been determined by the Tribunal on 30 June 2000, work did not recommence until late October 2000 (this being a delay of 17 weeks). The claim related to costs incurred after 15 February 2001. Accordingly, it is submitted that the suspension and the following unsuccessful proceedings were totally irrelevant to the delay that brought about the incurring of the costs and the delay between 30 June 2000 and late October 2000 was not taken into account. 59 How the disclosed reasoning process was applied to reach this result is far from clear. The issue was not approached as a question of breach of warranty. It seems to be accepted that this finding followed from what is set forth inter alia in paragraph 2 of the findings. I shall deal with that material in due course. In any event, the right issues have not been addressed and so there is further misdirection. 60 I now turn to ground 18. This constitutes the one area of consensus in relation to the grounds of appeal. The first defendant concedes that the amount allowed to the first defendant ($33,853.16) erroneously includes the sum of $3,077.56. The error arose from a GST component being included twice. It consents to the first defendant's entitlement being reduced by the sum of $3,077.56. 61 I now turn to grounds 1 - 9. These, like ground 18, concern the Cross-Claim. 62 Before dealing with the grounds themselves, I should first deal with a matter which is relevant to certain of them. 63 During the hearing before the Tribunal, the parties sought to amend the pleadings. A preliminary ruling was ultimately confirmed in the findings (paragraph 1. The Pleadings). The Tribunal rejected all applications and determined that the issues in dispute were to be determined by the filed pleadings (which had complied with directions made on 28 November 2001). 64 At pages 3 - 4 of the reasons, the Tribunal defined the issues to be determined. The second of those issues was said to be whether the builder was entitled to suspend the works. 65 The pleadings that were used by the Tribunal to determine this issue did not see the first defendant raising any questions of waiver, estoppel or acquiescence. 66 At pages 6 - 8 of the findings, the Tribunal found that it was unnecessary to determine the issue of whether or not the first defendant was entitled to suspend the works. 67 In paragraph 2.4 of the findings, the Tribunal made the following findings:- "The Applicants having elected to embark upon proceedings in the Tribunal as a means of resolving their differences with the Respondents, thereby necessitating a suspension of the Works, implicitly waived any contractual rights which they may otherwise have had to insist upon further performance by the Respondents in respect of the Works, until the issues had been determined in the forum and manner which they had chosen." 68 The Tribunal had earlier in paragraph 2 made a finding that the plaintiffs could have disputed the legality of the suspension had they wished to do so and further found that they elected not to do so but instead by a letter of 6 December 1999 had represented to the respondents their acceptance of the suspension. It was further found that the first defendant was entitled to rely on the representations. 69 The significance of the findings made in paragraph 2 seems to be that they are material to other findings made in respect of the claims for damages by reason of delay. The appeal has proceeded on this basis. 70 The plaintiffs make the point that, in addition to other complaints made by them, the finding of election was founded on a misconception of the contents of the letter. There is force in that contention. 71 I shall mention some of the other complaints made by the plaintiffs. They say that the evidence from the first defendant was that the works were suspended for the purpose of mitigating future loss. They say that there was misconception as to the principles of election. They say that there was no evidence upon which it could be said that the first defendant did rely on the representations. 72 It is unnecessary to address the many arguments presented concerning this ground. It suffices to say that the issue was dealt with on a basis that was not open on the pleadings and not the subject of submissions from the parties. The stance taken by the Tribunal was contrary to the earlier ruling made by it as to the pleadings. In my view, there was a denial of procedural fairness. 73 The Tribunal then proceeded to find that the plaintiffs should bear the reasonable costs of the first defendant associated with the delay arising out of the suspension of the works (paragraph 3 of the findings). The costs were assessed in the amount of $3,185.60 excluding GST. 74 A reference was made to whether clause 6 of the building contract gave a right to suspend the works. This was a provision that gave inter alia entitlements to an extension of time and a reasonable increase in the contract price where the works were delayed by reason of any of the matters specified in (a) to (l). It was the contractual provision relied on to recover these costs. It does not enable a builder to suspend the works. The first defendant had in fact relied on the provisions of clause 18 (d) to justify the suspension. The plaintiffs say that there was no evidence upon which that provision could be relied on. The Tribunal proceeded inter alia to look to the provisions of (f), (k) and (l) of clause 6 and ultimately found that the delay was due to "any other reason over which the contractor had no control" (l). It was said that clearly the works were delayed by the suspension, which occurred as a result of the proceedings in the Tribunal. It then found that the circumstances relating to the suspension and delay were circumstances over which the contractor had no control. 75 Again, it was said by the plaintiffs that this was misconceived, made without evidence and decided on questions not litigated on the pleadings. It was further said that the quantification was founded on speculation. 76 I should add that the finding made in paragraph 3.6 appears to be inconsistent with the material appearing in paragraph 2.4 of the findings. It could be seen as perverse in the light of the evidence. The evidence demonstrates that the works were suspended by the first defendant for the reasons set forth in its letter dated 10 November 1999 and to minimise loss. Further, it demonstrates that the suspension preceded the application to the Tribunal. It is a flawed finding. There was no evidence to support it. 77 The first defendant relies on the findings made in paragraph 2 (they were described as stepping stones) to support the findings made in paragraph 3 thereof. If that be the case, then the appeal must be allowed in respect to the findings made in paragraph 3. 78 The finding that the alleged delay was due to "any other reason over which the contractor has no control" determined a matter that was not in issue between the parties. The Cross-Claim pleaded other and different matters (including failure by the plaintiffs to give adequate instructions or directions). It suffices to say that it is another instance of denial of procedural fairness. Accordingly, it is unnecessary to consider other submissions made by the plaintiffs. 79 The Tribunal made a finding that practical completion of the dwelling occurred on or about 21 March 2001 (paragraph 4 of the findings). In its pleadings, the first defendant had alleged that the relevant date was either 5 February 2001 or 28 January 2001. Another date (7 March 2001) was referred to in submissions. Accordingly, the plaintiffs say once again that they were denied procedural fairness. 80 There was a finding that works had not reached practical completion on 5 February 2001. This was because there were still substantial defects requiring rectification and the white goods had not yet been installed. After 5 February 2001, the plaintiffs gave notice of matters still to be completed. The first defendant did further work and gave written notice of what it had done. The date of 21 March 2001 appears to have been selected by the Tribunal because on that day council had issued an Interim Occupation Certificate. The whitegoods were removed on or after 21 March 2001. 81 Again, it is said that there has been misdirection. "Practical Completion" was defined in the building contract (clause 2). The definition has been set forth in the findings. It was said that in deciding the date of practical completion the Tribunal did not apply the clause 2 definition but wrongly applied a different test (a test concerning occupation). In my view, this submission was correct. 82 It was said that the giving of the prescribed notice pursuant to clause 19 was a precondition to entitlement to a progress claim. It is said that no such notice was given. The only notice that was given (which was dated 5 February 2001) could not be relied on. 83 Upon practical completion the contractor is required to give a Notice of Practical Completion. Upon the giving of that notice, the owner is required to pay the progress claim within five working days of receipt of it. The clause also provides for the owner giving an owner's notice setting out those matters and things required by the agreement still to be completed. Upon the completing of such matters and things, the contractor is required to give the owner notice in writing of completion of the said matters whereupon the work shall be deemed to be practically completed upon the date of such notice. 84 The first defendant disputes that it was required to give a further Notice of Practical Completion. It says that it gave the second notice contemplated by the clause on 9 March 2001. This would appear not to have been a submission made to the Tribunal. 85 For the reasons advanced, the plaintiffs say that the basis for finding an entitlement to $39,610 for an unpaid progress claim was erroneous. 86 It seems to me that a difficulty confronting the first defendant is the finding made by the Tribunal that the works had not reached practical completion on 5 February 2001. Accordingly, it was not then required to give a Notice of Practical Completion. Indeed, the basis upon which it could have given such a notice did not exist. 87 In my view, there has been lack of procedural fairness, and misdirection as to law. 88 The Tribunal also found that the first defendant was not in breach of the building contract at the time when practical completion was achieved. This is also said to be an erroneous decision in respect of a question of law. 89 The Tribunal accepted the submission of the plaintiffs that the works should have been completed by approximately 1 February 2000 (this seems to be a typographical error as the correct date was 1 February 2001). 90 The finding appears to be founded on regard being had to the period for which the works remained suspended. Unfortunately, that period was not identified. It could be thought that this period may have ended on 30 June 2000. There appears to have been undisputed evidence that no work took place between 30 July 2000 and some time in October 2000. Why this was so, seems to be uncertain. It appears that this period may not have been taken into account. For present purposes, it is unnecessary to take this matter further. 91 Apart from submissions concerning deficiencies of evidence, the plaintiffs say that the Tribunal also failed to address a period of delay that ran from January 2001. 92 The reasoning process is unclear. In any event, in the light of what has been earlier said, it is unnecessary to further consider this ground. 93 I now turn to ground 8. The Tribunal found the amount of $39,610 was never disputed by the plaintiffs. The plaintiffs say that there was an admission as to quantum in a sum of $36,000 but there was no admission as to the GST component of $3,610. Accordingly, it is said that there was a failure to consider the question of liability for that sum and that it proceeded on an erroneous assumption that it had been admitted. In this Court, there are conflicting submissions as to whether or not there is a liability in the plaintiffs to pay GST. In the alternative it was said that if there be an entitlement to a GST component it can only be in the sum of $316.50. 94 There clearly has been further error. The Tribunal has misdirected itself. However, in the light of what has been earlier said, it is not necessary to further dwell on this ground. 95 I now turn to ground 9. The Tribunal made a finding that the first defendant was entitled to appropriate interest pursuant to clause 10 of that building contract on the amount that was due and payable to it at the time of practical completion. The plaintiffs say that as at 21 March 2001 as no moneys were then due and payable, interest cannot be awarded. Again, in the light of what has been earlier said, it is unnecessary to further dwell on this ground. 96 Finally, I turn to grounds 19 and 20. The relevant passages in the findings are to be found in paragraph 8. These passages deal with questions of costs. 97 What appears in the passages is somewhat confusing. It conveys the impression that there were more than one set of proceedings. 98 In fact, there was only one set of proceedings, but there were three hearings and a rehearing application. 99 There was the interim decision given on 30 June 2000. At the time of the making of that decision, no order was made as to costs. 100 There was the decision handed down on 9 November 2000. An order was made that each party pay their own costs. The plaintiffs had complained of rectification work. The claim was resolved by agreement. The first defendant was held to be entitled to damages. 101 There was an application made for a rehearing. A rehearing was granted in respect of the first defendant's claim for damages. There is doubt as to what was done as to the costs order. The order made may not have disturbed it. 102 Finally there was the decision given on 18 April 2002. The effect of the order made in 8 appears to be that the plaintiffs should pay the first defendant's costs of the proceedings. 103 The plaintiffs make numerous complaints about what was done. Firstly, it was said that neither party asked the court to make any order in relation to the decision handed down on 30 June 2000. Secondly, it was said that the effect of the order made by the Tribunal is to erroneously disturb the decision made as to the costs handed down on 9 November 2000. Thirdly, it is said that there was error in the matters taken into account in reaching the costs decision. 104 The Tribunal said that the plaintiffs were unsuccessful in the present proceedings and that they had failed to prove their claim for any form of damages. In fact, the plaintiffs had success in their claim for rectification (they were allowed $7,500). They were also allowed credits (which brought the total to $12,000). 105 The Tribunal held that the first defendant had proved a substantial part of its Cross-Claim and described it as the successful party. 106 One of the claims made by the first defendant failed completely. It could be said to be the more successful party. However, both sides received much less than what was claimed. 107 Leaving aside what follows from the decision in relation to this appeal, in my view, the costs order was unjust and erroneous. 108 Generally speaking, the findings are riddled with error. I shall only repeat certain of what has already been said. There has been denial of procedural fairness and misdirection in law. Despite the taking of a less demanding approach, the disclosure of reasoning process can only be regarded as grossly inadequate. There are inconsistent findings. There are relevant issues that have not been determined and many relevant findings that have not been made. Findings have been made where there was no evidence. 109 I return to the dispute as to the scope of the appeal. It is a question which I do not regard as having been fully argued. Fortunately, it is a question that does not have to be decided in this case. However, for completeness, I will briefly mention certain matters. 110 Section 67 of the Consumer, Trader and Tenancy Tribunal Act 2001 governs appeals from CTTT. It uses the language employed in earlier legislation (inter alia the Commercial Tribunal Act 1984). The effect of the language of the section appears to be to make available an avenue of appeal not "on a question of law against any decision of the Tribunal" (s 61 of the Fair Trading Tribunal Act 1998) but where the Tribunal decides a question with respect to a matter of law. There is little relevant comment to be found in the Second Reading Speech. What there is tends to suggest that no change was intended (appeals were still to be made on matters of law). 111 The defendant sees s 67 (1) as narrowing the avenue of appeal. This approach, if it be correct, may see areas of what have been traditionally regarded as errors of law no longer being grounds of appeal. The appellant would have to demonstrate error in a decision on an identifiable question with respect to a matter of law or denial of procedural fairness. 112 The plaintiffs ultimately made alternative submissions (the first of which was that the section should be construed in the manner that has been assumed in past cases viz that the appellant merely needs to show error of law). 113 In this case, the lack of procedural fairness of itself would suffice to allow the appeal. In addition, there are numerous matters which fall within the scope of the appeal regardless of the approach taken to it. 114 I should add that many of the findings which are the subject of appeal were decisions concerning the construction of the building contract. The construction of a document is a pure matter of law (Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60 at 78-79). In my view, these findings involve a determination of a question with respect to a matter of law whichever approach is taken to the construction of s 67. 115 In my view, justice between the parties can only be done by remitting the decision of this Court to the Tribunal and by ordering a rehearing of the proceedings by the Tribunal and I so order. Accordingly, I set aside the orders made by the Tribunal on 18 April 2002. The first defendant is to pay the costs of these proceedings. The Exhibits may be returned. 116 If the first defendant is so entitled, it is to have a certificate under the Suitors' Fund Act 1951. 117 The disputes between the parties have already incurred costs that are disproportionate to what is in issue between them. It is unfortunate that the parties are now facing a further hearing and the liability for costs that it will throw up. The parties would be well advised to consider a commercial resolution to their disputes.

Eather & Anor v Rawson Homes & Anor

At a glance

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Decision date

Source

Judgment (8 paragraphs)

Parties

Cases Cited (1)

Cited By (4)