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[2007] NSWSC 837
Supreme Court of NSW
2007-07-27
Harrison J
Original judgment source is linked above.
Background 9 In May 2004, Mr Godfrey contracted Carsille to undertake renovations to a home unit at Tamarama which was owned by him and rented out to tenants. The renovations incorporated works involving complete renovation of the kitchen and bathroom. The works proceeded pursuant to separate contracts for the kitchen and for the bathroom. 10 In the Tribunal, Carsille sought payment of outstanding moneys due under the bathroom contract. Mr Godfrey cross claimed seeking damages arising from the alleged poor workmanship of Carsille and for Carsille's failure to complete certain works. 11 On 15 March 2007, the Senior Tribunal Member Le Compte made an order dismissing the components of the plaintiff's application relating to the removal of piping and electrical conduit in the bathroom of the plaintiff's premises as the Tribunal was not satisfied that the works the subject of the application were necessary.
Leave for an extension of time to lodge an appeal 12 The plaintiff seeks leave for an extension of time to lodge an appeal in relation to the orders of the CTTT made on 15 March 2006. The appeal should have been filed on 12 April 2006. It was not filed until September 2006. It is four months out of time. Carsille opposes the application. Carsille's Counsel submitted that Mr Godfrey's explanation was not a credible one. 13 On 11 April 2006, Mr Godfrey wrote to Mr Cook, the general manager of Carsille Pty Limited, saying that Carsille did not intend to carry out the works in accordance with the specifications in the order of the CTTT and that it would not be able to complete the works by 21 April 2006, given that it required nine working days and there were only six work days. He commented that his tenant would be left without a functional bathroom over a long weekend holiday and after consulting with officers of the CTTT, he could not allow Carsille to commence the works. But that does not accord with what he says he was told by the officers at the CTTT. 14 On 11 April 2006, Mr Godfrey also contacted the CTTT by telephone to inquire how he could object to the decision of the CTTT. He deposed that he spoke with a woman named "Virginia" who stated he had no recourse and was unable to take further action. Mr Godfrey then requested to speak to a supervisor and spoke to a woman named "Gretel". He was then informed by Gretel that he could take no further action until time had expired for the builder to perform the works under the terms of the CTTT orders, namely by 21 April 2006. 15 In cross examination, Mr Godfrey elaborated on this evidence. He said that he rang the CTTT to get some advice in terms of how he could bring the matter to a head, as he was extremely unhappy that Carsille had not complied with the orders of the CTTT (although the time period had not yet elapsed). He says that he spoke to "a girl" who said that there was nothing he could do. He did not believe that could possibly be the case. He asked to speak to her supervisor. He then spoke to a person who declared herself to be the most senior person in the office. He went over the matter with her and she said to him words to the effect that "if I was to come up to the CTTT to do anything in relation to this matter they would lock me out of the office, they would not talk to me, they could do absolutely nothing for me, there was nothing I could do until all the time had expired." (t 4.39-52). 16 Mr Godfrey then requested to be put through to her supervisor. She told Mr Godfrey that she did not have a supervisor, as she was the most senior person and that the next person above her was the Member of the Tribunal and that there was no way that Mr Godfrey was going to be able to speak to the Member and that Mr Godfrey should just wait until the time period had expired (t 4.45-52). Mr Godfrey gave evidence that he had a contemporaneous file note of the conversations, and that file note made no reference to an appeal because he was only asking "the girl" at the CTTT what he could do in relation to the matter and that no-one mentioned an appeal at all. This is not surprising given the way he spoke to the Tribunal supervisor. 17 On 21 May 2006, Mr Godfrey says he was advised by the Tribunal Member at a hearing on 24 May 2006 that he should lodge an appeal. On 27 June 2006, he lodged an application for a rehearing and paid the appropriate fee. Mr Godfrey says that he was not informed by the Tribunal Member nor the clerk that the financial limit for the appeal of $25,000 was applicable to the application. In this regard, he understood the amount in dispute was $10,310. On 3 July 2007, the Tribunal Member refused to grant a rehearing and provided reasons. 18 Mr Godfrey is a liquidator and chartered accountant. He has been a chartered accountant for over 20 years. He gave evidence that he was not familiar with a 28 day period to lodge an appeal (t 3.5) but given the usual rule of thumb, in the normal course of conduct of his practice, there is a reaction time but in terms of how long it was, he had no direct knowledge. He explained that the cases he had been involved in as a liquidator were resolved in this Court at the hearing at first instance. 19 It is my view that when Mr Godfrey did not get the result he wanted in relation to the rectification work, he decided to lodge an appeal in relation to electrical wiring and piping. The appeal was an afterthought. The correspondence between Harvey Norman, who subcontracted the works to Carsille, and Mr Godfrey reveals that Mr Godfrey paid close attention to his perceived rights arising out of the contract. If he was dissatisfied with the Tribunal's decision he was in a position to make his own enquiries as to his right to appeal. If I am wrong and an extension of time is granted, I will consider the merits of the appeal. 20 The plaintiff's explanation for delay is unsatisfactory and I refuse to grant leave for an extension of time in which to file this appeal.
The Tribunal hearing 21 Mr Godfrey gave evidence before the Tribunal Member in documentary form as well as by sworn testimony at the hearing. Attached to a document entitled "Bathroom Renovation Order" is a proposed bathroom floor plan. On that plan appears a notation as follows: "New wiring (sic) and plumbing to go in back to point of entry to room." There is nothing about the necessity for copper piping. 22 Mr Godfrey's Scott Schedule itemising copper piping and electrical wiring reads: "Old copper pipe not removed from bathroom. Requires full strip of bathroom as homeowner considers pipe will fail -$15,246.00
Old electrical wiring and faulty conduit not removed -$3,000.00" 23 In relation to those items, Carsille responded as follows: "Builder denies responsibility regarding the removal of plumbing back to point of entry to room, not to point of entry to premises.
Builder claims that all old electrical wiring was removed from the stack." 24 It was Carsille's position that the plumbing had been replaced with the exception of one metre of existing copper piping at the end of the bath - see letter. In relation to the metre of copper piping, Mr Cook the managing director of Carsille, said (t 106.1-15): "On the plumbing and electrical. The plans and the documents are very specific. They talk about entry to a room. Godfrey argued continuously it was point of entry to unit. I think he then realised that he had signed off on plans that said "entry to room". Lee, I take personal offence on behalf of Lee for Mr Godfrey implying that Lee is basically lying. I'm not sure just where he comes off with that. Lee, the same, I've know Lee for a number of years now and I've found him to be honest beyond reproach. If he had an agreement with Mr Godfrey to leave that existing 100 millimetres - a metre of existing pipe, he would have done so for a very specific reason. It's interesting that at that point Mr Godfrey didn't stop the works on site."
The Tribunal Member's reasons 25 The Tribunal Member accepted Carsille's evidence in relation to the copper piping and the electrical conduits. The Tribunal Member stated: "I considered the homeowner's claim that significant work was required to remove relevant old copper piping on the basis that the builder had not replaced all copper piping when undertaking the renovation. I noted the handwritten comments by a plumber obtained by the builder to comment on the work of the builder and the quotation from the plumber to undertake the work….
I heard evidence from the builder's employees as to the reason for using a small amount of existing copper piping in the renovation and their view that the piping would function appropriately having regard to the work undertaken in connecting it. There is no evidence from the plumber retained by the homeowner that the work undertaken by the builder does not comply with the relevant Plumbing Code of Practice or Australian Standard, or the requirements of the relevant water authority. In the circumstances, and having regard to the fact that I have some significant doubt as to the reliability of the position adopted by the homeowner's plumber, as well as a lack of evidence that the works are not functioning appropriately, I do not consider it necessary to order the expenditure of over $15,000.00 to address the homeowner's concerns." 26 The plaintiff submitted that the question of whether the piping was functioning is an irrelevant consideration as the issue was whether the piping was replaced in accordance with the provisions of the contract. Likewise, according to the plaintiff, reference or regard to the costs of rectification in accordance with the contract is an irrelevant consideration with respect to the question of whether the contract was performed. The plaintiff also submitted that the parties are to be bound to the contract and the CTTT erred in taking the above matter into account and that the error of the CTTT goes to the very heart of the contract and accordingly are to be considered errors of law, and not of fact. 27 Carsille contended that neither of the submissions relied upon by the plaintiff are of assistance to the court in reviewing the decision the subject of complaint in these proceedings. According to Carsille, neither the question whether the replacement stipulation is an essential term or, prima facie, the question whether irrelevant considerations were taken into account shed material light on the decision. 28 Carsille further submitted that the matter for decision before the Tribunal Member, properly understood, turns upon the proper measure of damages in the assumed (but not admitted and expressly denied) circumstances that the replacement stipulation was breached by the defendant in using a small amount of existing copper piping. 29 The schedule, which is attached to the contract, noted the new plumbing back to the point of entry to the room. It was the defendant's case that it had complied with that requirement. Even if this notation could be considered a term of the contract, and it was breached, the remedy is an award of damages. On this issue, the Tribunal Member relied upon expert evidence that a small amount of copper piping was necessary and that the piping would function properly. Hence, there was no damage. It was open to the Tribunal Member to make the decision that he did. Even if leave ought to have been granted, it is my view that there is no error of law and the appeal should be dismissed. The decision of Senior Tribunal Member Le Compte dated 15 March 2006 should be affirmed. The summons filed 6 September 2006 is dismissed. 30 Costs are discretionary. Costs normally follow the event. The plaintiff is to pay the defendant's costs as agreed or assessed.
(1) The application for leave to appeal is refused.
(2) The summons filed 6 September 2006 is dismissed.
(3) The plaintiff is to pay the defendant's costs as agreed or assessed. **********
07/08/2007 - Date of judgment on coversheet - Paragraph(s) Coversheet
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Godfrey
Carsille Pty Limited & Anor
CITATION : Godfrey v Carsille Pty Limited & Anor [2007] NSWSC 837 This decision has been amended. Please see the end of the judgment for a list of the amendments.
CASES CITED : Chapman v Taylor & Ors; Vero Insurance Ltd v Taylor & Ors [2004] NSWCA 456 Kalokerinos & Anor v HIA Insurance Services Pty Ltd & Anor [2004] NSWCA 312