Riordan v Cross & Ors [2005] NSWSC 112 | Case summary

JUDGMENT 1 Master: The first defendants entered into contractual relationships for the supply and installation of a swimming pool at their property in Tomerong. The plaintiff was a person that they had dealings with, both in relation to the supply and installation of the pool. They also had dealings with him in relation to attempted abortive rectification work. He was not a person who was licensed to carry out such work. 2 The pool was so defectively installed as to be irreparable. It was removed and the property refilled. 3 On 4 March 2003, the first and second defendants made application to the Consumer, Trader and Tenancy Tribunal (the Tribunal) for compensation. Ultimately, there were three respondents. The plaintiff was added as a third respondent subsequent to the bringing of the application. 4 The application came before the Tribunal for a second time on 24 June 2003. There was an appearance by or on behalf of the plaintiff. Directions were given (including a direction requiring all parties to file all material upon which they sought to rely by 29 July 2003). On 15 July 2003, an extension of time was granted. These listings took place at Nowra. 5 The plaintiff did not file any material. The Tribunal file does not reveal any further involvement on his part in the proceedings. 6 However, he had earlier written a letter to the Tribunal (Exhibit B). It was in the following terms:- SUBJECT: Complaint by B & V Cross re installation of swimming pool. I wish to advise that I am in receipt of correspondence from your Department re the subject matter, I wish to state that I supplied the pool to the customer B & V Cross, when the pool was delivered to their address they examined in and found it to be in good order, they signed for the pool and paid me the outstanding balance of the purchase price, my duty stopped there, I was in no way involved with the installation of the pool this was carried out by a licensed builder who had been engaged by B & V Cross. Copy of the sales delivery Invoice signed by Cross attached. 7 The application was listed for a hearing to be held on 2 September 2003 at Wollongong. The plaintiff was given notice of the time and place of the hearing. The relevant notifications form part of the Tribunal file. It is not disputed that he had notice of the time and place of hearing. The notice of hearing was in the usual form. It advised him, inter alia, that if he did not appear at the specified time and place, the Tribunal may decide the matter in his absence. 8 None of the respondents appeared at the hearing. The first and second defendants were present and ready for hearing. The Tribunal decided to proceed ex parte. After a hearing, the second and third defendants were ordered (jointly and severally) to pay the sum of $23,355.00 on or before 15 September 2003. The plaintiff sought reasons for the decision. 9 The Tribunal provided written reasons (dated 21 October 2003). 10 On 24 February 2004, the plaintiff filed a summons in this court. It purports to bring a challenge pursuant to ss65 and 67 of the Consumer Trader & Tenancy Tribunal Act 2001 (the Act). Section 65 enables a challenge to be made where there has been a lack of jurisdiction or a denial of procedural fairness. Section 67 enables a challenge by way of appeal where the Tribunal has decided a question with respect to a matter of law. 11 The summons has been filed well out of time. Generously, the first defendants do not oppose an extension of time. 12 The summons has been before the court on numerous occasions. On 7 December 2004, it came before Registrar Howe. On that day, he allocated a special fixture. The proceedings were fixed for hearing to take place on 24 February 2005. The special fixture was allocated on the usual terms (inter alia as to the nature of the case to be presented and as to its readiness for hearing). 13 Shortly before the hearing date (on or about 21 February 2005), the plaintiff gave notice of intention to file an amended summons. The purport of the summons was to propound an additional ground of appeal (founded on apprehended bias). 14 The proposed additional ground relied on certain passages recorded in the transcript concerning what was said by the Member at various time during the hearing (such as in exchanges with the first defendants). 15 Whilst the question of the validity of the proposed ground was not fully argued, from what was put during argument I gained the impression that it was lacking in merit. A reading of the passages confirms that view. 16 Largely, what was said by the Member took place in the context of his investigation of the factual background and whilst he was eliciting information to enable him to make his findings. 17 I should add that if the plaintiff had attended the hearing, any concern had by him as to what was said could have been addressed by him by way of evidence and/or submission. Because he did not attend, he deprived himself of that opportunity. 18 The application for amendment was opposed. It was refused following argument. Counsel for the first defendants informed the Court that he was not in a position to then fully meet the proposed additional ground and that he would be prejudiced if the amendment was allowed and the matter proceeded to a hearing on that day. I should add that no satisfactory explanation was advanced for the belatedness of the application to amend. 19 The amount in dispute is relatively small. If the amendment was to be allowed, it seemed inevitable that the proceedings would have to be adjourned and a further hearing date set aside. Further costs would be generated and the court would then have had to allocate two hearing days for the disposition of what might be regarded as a minor appeal. 20 In my view, the interests of justice were best served by a refusal of the application for amendment, with the hearing taking place on the date for which it had been specially fixed. 21 Broadly speaking, this left two principal areas of challenge. The first concerned the provisions of clause 29 of the Consumer Trader & Tenancy Tribunal Regulation 2002 (the Regulation). The second concerned a question of whether or not the plaintiff had been engaged in "residential building work" within the meaning of the Home Building Act 1989. 22 Clause 29 is in the following terms:- Ex parte proceedings (1) The Tribunal may proceed to hear a matter in the absence of a party who has failed to attend the hearing: (a) if it is satisfied that notice of the hearing was duly served on the party, or (b) if: (i) being satisfied that service of notice of the hearing has been duly attempted, or (ii) having given directions under clause 46 (6), the Tribunal considers that justice requires that the matter be dealt with in the absence of the party concerned. (2) If a matter is adjourned by the Tribunal in the absence of a party, the Registrar is to give notice of the time and place of the adjourned hearing to the absent party. If the party who is so notified fails to attend the hearing, the matter may be dealt with in the absence of the party. 23 As I understand what is being put on behalf of the plaintiff, it is said that the Tribunal failed to meet the requirements set forth in sub-clause (1) and that it should have adjourned the proceedings and taken the steps referred to in sub-clause (2). In my view, what was argued was untenable. 24 There was little debate as to the consequences of non-compliance with clause 29. It appears in Part 7 of the Regulation ("Procedure generally"). It is presented as a procedural provision. 25 Part 3 of the Act deals with "Jurisdiction of Tribunal". Part 4 thereof deals with "Procedure of Tribunal" (ss24-53). The latter does not contain any provision similar to clause 28. Section 28 enables the Tribunal, subject to the Act, to determine its own procedure. Section 32(3) provides inter alia that non-compliance with the regulations (in relation to the conduct of the proceedings) is to be treated as an irregularity and does not nullify any decision in the proceedings. It gives the Tribunal inter alia the power to set aside a decision. 26 The structure and content of the Act would not suggest that any such non-compliance was intended to be the subject of a challenge pursuant to either of sections 65 or 67. 27 Putting that consideration aside, I shall now look at what was done by the Tribunal. 28 At the time of the hearing, the Member had the Tribunal file relating to the proceedings before him. The transcript and the written reasons disclose that the Member had recourse to that file. It contained material that, inter alia, evidenced service of notice of the time and place of the hearing and the prior history of the proceedings. After enquiry and deliberation, a determination was made to proceed ex parte. 29 Whether or not it did so explicitly, in my view, the Tribunal implicitly met the requirements set forth in clause 29(1). I take the view that it proceeded ex parte after it had satisfied itself that notice of the hearing had been duly served on the plaintiff and the relevant consideration that justice required the matter to be dealt with in his absence had taken place. 30 The file showed that apart from the writing of Exhibit B, the plaintiff had not taken any steps in preparing a defence of the application. He had not responded to the directions that had been given on 24 June 2003 (even though there had been an extension of time to do so until 2 August 2003). No application was made for an adjournment. The plaintiff did not appear on the allocated hearing date. He did not provide the Tribunal with any reason for his non-attendance. 31 On the hearing date, the first defendants appeared and were ready to proceed with the hearing of their application. Any further deferment of the hearing of the application may have caused prejudice to them. There was nothing before the Tribunal to suggest that an adjournment was required by or would be in the interests of the plaintiff. It was entitled to assume that he had decided not to appear further before it and to allow the matter to proceed ex parte. 32 In the circumstances, it seems to me that the Tribunal was entitled to take the view that the proceedings should not be adjourned and that justice required that the matter be dealt with in the absence of the plaintiff. Indeed, it would have been perverse to act otherwise. 33 In my view, sub-clause (2) is irrelevant in the circumstances of this case and affords no assistance to the plaintiff. It does no more than prescribe what the Tribunal must do when it adjourns a matter in the absence of a party. In this case, there was no such adjournment. 34 Section 3 of the Home Building Act 1989 defines "residential building work". The definition expressly includes work involved in the installation of a swimming pool for use in conjunction with a dwelling. The definition does not include work that is declared by the Regulations to be excluded from it. Clause 8 of the Regulations excludes any work (other than specialist work) the reasonable market cost of the labour involved in which does not exceed $200.00. 35 It is said that the plaintiff's liability depended on him having carried out "residential building work" and that the finding that he carried out such work was either erroneous or not open on the evidence. Further, it is said that the work done by him was excluded by the Regulation (by reason of the work done not having a reasonable market cost exceeding $200.00). 36 There was ample evidence before the Tribunal of the plaintiff doing work inter alia in relation to the installation of the pool. The Tribunal had both the oral evidence given by each of the first defendants and what was shown on a video (Exhibit 11) depicting the working activities. 37 The nature of the work is set forth in the written reasons (it took place over some days). The Tribunal came to the view that both of the first defendants presented as credible and reliable witnesses. It rejected what had been submitted by the plaintiff in his letter (Exhibit B). 38 In my view, not only could the work be regarded as falling within the definition of "residential building work", it would be difficult to otherwise categorise it. Further, I consider that it was reasonably open to the Tribunal to find that the reasonable cost of what was done was well in excess of $200.00. Be that as it may, this was a question on which the plaintiff would have borne the onus. He did not appear and present evidence as to the value of the work done by him. His case was that his role was that of a salesman and that "was in no way involved with the installation of the pool". In my view, it was not open to the Tribunal to find that the reasonable cost was less than $200.00. 39 In the circumstances, I consider that this second area of challenge was also untenable. 40 A further area of challenge was briefly put. It concerned the question of quantum. A challenge was made to an assessment of quantum in excess of $18,950.00 (this being a figure set forth in material from an expert relied on by the first defendants). 41 This challenge overlooks the other material before the Tribunal and the other components of the claim made by the first defendants. The Tribunal dealt with the claim on the basis that complete removal of the pool was required. It had regard to, inter alia, a schedule of payments and to removal, transportation and dumping costs. In my view, it was reasonably open to the Tribunal to assess the quantum in the sum of $23,350.00. 42 In dealing with the various matters argued on behalf of the plaintiff, I have proceeded on the assumption that the challenges were open under the provisions of ss65 and 67 of the Act. 43 Counsel for the plaintiff appeared to proceed on the erroneous view that s67 provided an avenue of appeal where there was error of law. It is now well established that s67 provides a much narrower avenue of appeal. On some views, it is restricted to matters of pure law. There can only be an appeal where the Tribunal decides a question with respect to a matter of law. I should also add that "matter of law" is defined to include lack of jurisdiction only and not denial of procedural fairness. 44 In my view, save to the extent that clause 29 can be said to give rise to a question of jurisdiction, none of that which was argued fell within the narrow ambit of s67. Further, I am not satisfied that there was any denial of procedural fairness. 45 The summons is dismissed. The plaintiff is to pay the costs of the summons. The exhibits may be returned. **********

Riordan v Cross & Ors

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