Love v CTTT & Anor [2007] NSWSC 596 | Case summary

JUDGMENT 1 HIS HONOUR: The Plaintiff is the owner of a property in Corunna Road, Stanmore. In or about August 2003, the second defendant was engaged to perform residential building work in respect of it. It seems that a written contract was executed by the parties. 2 The second defendant performed building work until in or about December 2003. The plaintiff was then having problems in paying invoices. A consensus emerged between the parties, which saw a change in the relationship between them. The second defendant ceased the performance of building work. His involvement thereafter was to provide names of sub-contractors who would then be engaged by the plaintiff. Invoices would be rendered by sub-contractors to the second defendant and the second defendant would then render an invoice to the plaintiff. The invoice from the second defendant added a "15% margin". 3 After December 2003, the second defendant rendered one invoice. It was in part a claim for what had been done prior to December 2003 and in part a claim for what had been done thereafter. It was not paid by the plaintiff. 4 The second defendant brought proceedings in the Consumer, Trader and Tenancy Tribunal (the Tribunal). The second defendant claimed the sum of $44,838.68 plus interest. The plaintiff also brought proceedings, claiming damages for defective work (it came to be a claim in excess of $150,000). 5 The proceedings were heard by Tribunal Member Deamer. She delivered her reasons for decision (the reasons) on 15 August 2006. She found for the second defendant on it's application. She rejected the application brought by the plaintiff. 6 The plaintiff had received legal advice. He did not seek to be legally represented during the hearing. As a consequence, both parties were unrepresented. 7 The plaintiff instructed his legal advisers to bring an appeal against the decision made on the second defendant's application. This may have been done on the last day for the bringing of an appeal (12 September 2006). Why action was not earlier taken was left unexplained.

8 The explanation for what followed has its deficiencies. On 12 September 2006, his legal advisers erroneously filed a Holding Summons for Leave to Appeal. Thereafter, advice was sought from Counsel (Mr Duncan Miller). He provided a written advice dated 5 October 2006. It advised both as to the prospects of success of an appeal and the steps to be taken by the plaintiff to have that appeal brought before the Court. In respect of the latter, he advised that a Notice of Motion be filed forthwith. One aspect of the advice was to bring about a properly constituted appeal. A Notice of Motion was not filed until 13 November 2006. Why that delay took place has not really been explained. 9 In February 2007, a date for the hearing of the appeal was allocated (8 June 2007). At that stage, the plaintiff was proceeding on an Amended Summons filed on 12 December 2006. The hearing date was allocated on the usual basis (that all affidavits to be relied on had been filed and that the appeal was ready for hearing). 10 Shortly prior to the hearing date, the plaintiff gave notice to the second defendant of a proposed Further Amended Summons and of a further affidavit sworn by the plaintiff. 11 On the hearing date, the plaintiff was represented by Mr Miller QC and the second defendant was represented by Mr Owens. The plaintiff moved for leave to file the Further Amended Summons and to rely on the affidavit recently sworn by himself. These applications were opposed by the second defendant. 12 Lengthy argument then took place. At the conclusion of it, and after seeking further instructions from his client, Mr Miller abandoned the applications. Hearing then continued on the basis of the relief sought in the Amended Summons. The grounds of appeal may be identified from what appears in Paragraph 3 thereof (they are presented as being "particulars" of declarations sought by the plaintiff). The grounds were pressed as raising errors of law. Not all of them were argued. 13 The effect of the abandonment of the proposed Further Amended Summons was that the grounds relied on brought a challenge only to the decision made on the second defendant's application and no matters relating to denial of procedural fairness (as foreshadowed by the Further Amended Summons) were to be litigated. I may add that those abandoned grounds gave an immediate impression of being short on merit. 14 Before dealing with what was thrown up by the grounds of appeal, I should quickly address one other matter. As the appeal had been brought out of time, it could only be maintained if an extension of time was granted. 15 When the matter came on for hearing, no affidavit had been filed which addressed the question of explaining default. The second defendant did not oppose Mr Miller leading oral evidence from his instructing solicitor (Mr Shortall). After the giving of his oral evidence in chief, he was cross-examined. 16 The Court has a discretionary power to extend time. It is exercised having regard to the relevant circumstances of the particular case before the Court and so that the dictates of justice are best served. In this case, the relevant considerations were regarded as being the extent of the default, the explanation provided for it and the merits of the appeal. The application for extension of time and the appeal itself were heard concurrently. 17 The appeal is brought pursuant to section 67 of the Consumer, Trader & Tenancy Tribunal Act 2001 (NSW) (the Act). It provides a somewhat unique and narrow ambit of challenge (it lies where the Tribunal decides a question with respect to a matter of law). In the cases, the "matter of law" has been regarded as being limited to what is said to be "a pure question of law". Accordingly, the ambit of challenge is restricted to a decision of the Tribunal on a pure question of law. The ambit is not synonymous with what is described as error in point of law in other legislation. The onus rests with the plaintiff. 18 Before going further, I should briefly outline the structure of the reasons. 19 After identifying the applications and the evidence of the parties, the Tribunal Member set out her findings. 20 The first matter addressed in the findings was the contract itself. She had before her four pages only of that document. These pages were tendered by the plaintiff. She also had a sample copy of the standard contract, which was tendered by the second defendant. 21 She then made the following finding:- "I find that the owner determined the contract in or about December 2003. I find that he then took over the supervision of the work. He did not hold an owner/builder permit and should not have been supervising sub-contractors. The extent of the builders' involvement after the end of 2003 was to provide the names of subcontractors who the owner would then engage, although the subcontractors would bill the builders up until the end of March 2004 and they would in turn invoice the owner. The final invoice from the builders was dated 29 March 2004, with a reduced margin from 15% to 5%. It was said that this reduction was a favour to the owner because he said he was having difficulty getting the money and they thought they would find it easier to get paid. The builders now claim the full 15% margin because the owner has refused to pay the balance owing to the builder. They also claim interest under the contract. However, the difficulty the Tribunal has is the page which may contain the interest rate on overdue payments has not been produced." 22 She then proceeded to examine the evidence relied on by the plaintiff adduced to support his claim for damages and reached her adverse decision concerning it. It was determined on failure to discharge the onus of proof. 23 She then proceeded to deal with the second defendant's claim for interest. The findings contain the following:- "I find the builders are entitled to be paid the final invoice of $44,838.68 which includes GST and a 15% margin. The major difficulty I have is the builder's claim for interest. Without the full copy of the contract, I do not know the interest rate or even if there was any provision for it in the contract. I am unable to find that the owner is liable for interest on the unpaid amount. Having said that, if I had evidence of the interest rate, I would have awarded the builders interest". 24 Before I turn to the submissions made by the plaintiff in this appeal, it is important to identify the nature of the dispute that the Tribunal Member was asked to determine in relation to the second defendant's claim. The plaintiff did not dispute either that there was contract on foot subsequent to December 2003 or that there was a contractual entitlement to the sum claimed. The only basis advanced by him for non-payment of the invoice was the alleged defects (page 3 of the transcript). It was common ground that the plaintiff did not agitate any matter of non-compliance with provisions of the Home Building Act 1989 (NSW). 25 In this Court, both Counsel have provided written submissions and have supplemented them by oral argument. The alleged errors of law argued by the plaintiff are to be found in 6.1 of the written submissions. In a general sense they may be said to fall within the compass of challenging the Tribunal Member's finding as to "determination" of the contract, alleging her failure to make findings as to matters of contract and failure to have regard to sections 7 and 10 of the Home Building Act 1989. 26 It may be that some uncertainty emerges as to what the Tribunal Member had in mind when she made the observation that "the owner determined the contract in or about December 2003". Counsel have argued competing approaches concerning that matter. In my view, what was said by her was immaterial to what was in issue (it may be that it was intended to be no more than part of the chronology). As the matter of contract was not in issue, she was not required to make any findings concerning it. The only issue litigated by the plaintiff was the defects alleged by him. His failure on that issue decided the case. 27 What changed after December 2003 was the work to be performed by the second defendant thereafter and the payment that it was to receive for that work. There was common ground as to these matters. 28 Any question of compliance with provisions of the Home Building Act 1989 was not an issue. This was probably because the parties did not regard what was to be done by the second defendant, subsequent to December 2003, as falling within the definition of "residential building work". For completeness, I may add that this question was not really argued in this Court and I was left unpersuaded that the work did fall within the definition (see, inter alia, Collings Homes v Head & Ors [2002] NSWSC 1219). 29 In my view, what has been said effectively disposes of the question of the merits of this appeal. It is an appeal which I regard as having been misconceived. 30 Before leaving that question, perhaps I should mention one other matter. There were grounds to the effect that findings were made without supporting evidence. If such an argument was being put by the plaintiff, I will proceed to make two further comments. Firstly, I do not consider that the submission was made out. Secondly, I do not consider that such a submission raises a challenge that falls within section 67 of the Act (see, inter alia, Fiatorque Five Dock Pty Limited v Daines & Anor [2007] NSWSC 520). 31 In light of the view reached as to the merits of the appeal, it would be futile to grant an extension of time. I may add that what was offered to explain default and delay fell well short of being satisfactory. Accordingly, I am not disposed to grant the application for extension of time. 32 It needs to be appreciated that the granting of an extension of time is not a mere formality. Any such application should be supported by evidence that discharges the onus of proof borne by the applicant. 33 The appeal fails. The proceedings are dismissed. The plaintiff is to pay the costs of the proceedings. The exhibits may be returned. **********

Love v CTTT & Anor

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