Fair Trading Administration Corporation v Meriton Apartments Pty Limited

Fair Trading Administration Corporation v Meriton Apartments Pty Limited - [2010] NSWDC 22 - NSWDC 2009 case summary — Zoe

Parties

Applicant/Plaintiff:

Fair Trading Administration Corporation

Respondent/Defendant:

Meriton Apartments Pty Limited

Cases Cited (17)

CITATION: Fair Trading Administration Corporation v Meriton Apartments Pty Limited [2010] NSWDC 22

Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Payments Corporation (1985) 1 NSWLR 561. Bailey v Marinoff (1971) 125 CLR 529. Builders' Licensing Board v Inglis (1985) 1 NSWLR 592. Builders Registration Board of Queensland v Rauber (1983) 47 ALR 55. Carr v FTAC (unreported, NSWCTTT). Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389. Craig v State of South Australia (1995) 184 CLR 163. Fair Trading Administration Corporation v Owners Corporation - Strata Plan 43551 [2002] NSWSC 624. Flood v Fair Trading Administration Corporation (Home Building) [2004] NSWCTTT 755. Hassell; Re Quirk (1937) 37 SR(NSW) 192. CASES CITED: Hristoforidis v Fair Trading Administration Corporation [2007] NSWSC 1243. Jones v Dunkel (1959) 101 CLR 298. Kabourakis v Medical Practitioners Board of Victoria [2006] VSCA 301. McCallum Developments v Owners Corporation SP 53908 [2002] NSWSC 1103. Minister for Immigration v Kurtovic (1990) 92 ALR 93. Owners - Strata Plan 43551 v Fair Trading Administration Corporation; Walter Construction Group Ltd v Fair Trading Administration Corporation [2004] NSWSC 158. Owners - Strata Plan 58068 v Fair Trading Administration Corporation [2009] NSWSC 850. Owners Corporation SP 56911 v Fair Trading Administration Corporation (Home Building) [2007] NSWCTTT 181. P & V Sammut Homes Pty Ltd v Building Services Corporation (unreported, NSWSC, 24 April 1997). Walter Construction Group Ltd v Fair Trading Administration Corporation; Fair Trading Administration Corporation v Owners - Strata Plan 43551 [2005] NSWCA 55. Woods & Wilson v Fair Trading Administration Corporation [2004] NSWCTTT 523.

23 The first thing to observe about the statutory scheme is that the prime object of BSC, as specified in s 105(2)(a) of the BSC Act, is "to promote and protect the interests of owners and purchasers of dwellings" and, in doing so, is in accordance with para (b) of that sub-section "to set, assess and maintain standards of competence of persons doing residential building work or specialist work". Section 105(3)(c) expressly empowers BSC to insure under the statute such residential building work against its non-completion or as being defective; hence, the BSC Comprehensive Insurance Scheme in Sch 1 to the BSC Regulation. I think it to be apparent from the stated object that the legislation is to be construed in a beneficial manner in favour of an insured owner or purchaser and not in a strict sense as would otherwise defeat the expressly intended statutory object: see McCallum Developments v Owners Corporation SP53908 [2002] NSWSC 1103 at [36]; Woods & Wilson v Fair Trading Administration Corporation [2004] NSWCTTT 523; and Owners Corporation SP56911 v Fair Trading Administration Corporation (Home Building) [2007] NSWCTTT 181 at [k], [l].

24 It is next, I think, appropriate to observe as to the statutory scheme that it is concerned with two regimes: first, dispute resolution and disciplinary provisions in Pt 4 of the statute and Pt 5 of the Regulation; and, second, insurance schemes in Pt 6 of the statute and Pt 6 of and Sch 1 to the Regulation. In Woods & Wilson, followed in Flood v Fair Trading Administration Corporation (Home Building) [2004] NSWCTTT 755, Mr R Phillips, a senior member of the Consumer, Trader and Tenancy Tribunal, drew a distinction between "complaints" made under s 56 of the BSC Act in Pt 4 about the conduct or qualifications of a builder triggering disciplinary hearings and "claims" made under the BSC Comprehensive Insurance Scheme in Pt 6 and said they were "not to be confused" one with the other. This distinction was adopted by the defendant here to base a submission that the insurance claim was made out of time because the plaintiff treated the "complaint" by the Owners Corporation pursuant to s 56 as a "notification" pursuant to cl 7(1)(b) and (c) of the insurance scheme. I will return to this later. Suffice it to comment at this point that I do not see the two regimes as mutually exclusive in what they provide or that satisfaction of a condition in one may not also be satisfaction of a condition in the other. As Studdert J commented in McCallum Developments (at [36]): "The obligation to notify is an obligation imposed upon the claimant beneficiary but the scheme prescribes no formality concerning that notification and the language of Form 4 should not be construed narrowly because of the beneficial nature of the legislation."

25 The plaintiff's exercise of its statutory powers in meeting the Owners Corporation's claim for indemnity under BSC Insurance by making various decisions, up to five such decisions were pleaded, was said by the defendant to be ultra varies the BSC Act, the BSC Regulation and the scheme under BSC Insurance as being beyond its powers and therefore not recoverable by it as a debt from the defendant under s 98(1) of the BSC Act or at all. The basis for this approach depended upon the functus officio doctrine, that is, the final exhaustion of powers, and relied on the terms of the present statutory scheme as explained by Latham J in Hristoforidis v Fair Trading Administration Corporation [2007] NSWSC 1243 where her Honour (at [40]) followed what the Court of Appeal of Victoria said in Kabourakis v Medical Practitioners Board of Victoria [2006] VSCA 301 as to the question of the status of an administrative decision as being: "… whether the statute manifests an intention to permit or prohibit reconsideration in the circumstances that have arisen. But, ...as a rule a statutory tribunal cannot revisit its own decision simply because it has changed its mind or recognises that it has made an error within jurisdiction. More often than not, the requirements of good administration and the need for people affected directly or indirectly by decisions to know where they stand mean that finality is the paramount consideration, and the statutory scheme, including the conferring and limitation of rights of review on appeal, will be seen to evince an intention inconsistent with capacity for self-correction of non-jurisdictional error. In the bulk of cases, logic and commonsense so much incline in favour of finality as to permit of no other conclusion."

27 In this respect as to the finality of decisions, it is instructive to refer to other authority on the operation of the scheme under BSC Insurance as did Latham J in Hristoforidis (at [35]-[39]). Such authority arose in litigation where FTAC sought to renege on an initial decision favouring an owner/claimant. Grove J in Owners-Strata Plan 43551 v Fair Trading Administration Corporation; Walter Construction Group Ltd v Fair Trading Administration Corporation [2004] NSWSC 158 found that the scheme under the legislation prevented the re-opening of FTAC's decision to settle the owner's claim. His Honour's view was upheld on appeal in Walter Construction Group Ltd v Fair Trading Administration Corporation; Fair Trading Administration Corporation v Owners-Strata Plan 43551 [2005] NSWCA 55 where Santow JA tellingly observed in the leading judgment: "[Having] embarked upon a decision-making process, whether that decision be simply to settle the claims of the owners, or to resolve a dispute in relation to the claims by so doing, FTAC was now functus in the sense used in Minister for Immigration v Kurtovic ...[Even] had FTAC failed to consider factual material available, ..., any such failure could not deny its ability to make a decision. It is therefore not open to FTAC, having thereby spent its decision-making powers, to now seek to unravel its decision-making processes ...".

[2006] VSCA 301

(1985) 1 NSWLR 561

(1971) 125 CLR 529

(1985) 1 NSWLR 592

(1983) 47 ALR 55

(1991) 22 NSWLR 389

(1995) 184 CLR 163

(1959) 101 CLR 298

(1990) 92 ALR 93

[2009] NSWSC 850

[2005] NSWCA 55

At a glance

Court

Decision date

Source

Judgment (106 paragraphs)

Parties

Cases Cited (17)