Strangas & Son Building Contractors Pty Ltd v Lim

Judgment 1These proceedings commenced by the filing of a Summons on 10 September 2012. That Summons was replaced by an Amended Summons filed on 21 September 2012. 2Prayer one in the Amended Summons seeks an order in the nature of a writ of certiorari quashing the orders made in the Tribunal below by Member Buckley on 21 September 2011. The Tribunal below was the Consumer Trader and Tenancy Tribunal. There are ancillary orders if an order for certiorari is made. 3Two other substantive prayers are sought. The first is a declaration that the Defendants would be unjustly enriched if the Plaintiff was required to pay the balance of the judgment debt registered in the Local Court in certain proceedings in the amount of $21,904, and an alternative prayer that the judgment of the CTTT delivered 21 September be varied by reducing the amount of the judgment to $67,965. 4Contrary to r 6.12A UCPR neither the Summons nor the Amended Summons contained a statement setting out the grounds relied on in support of the claim, nor any error of law in the decision of the Court below. That default has been latterly remedied as a result of the provision by the Plaintiff of what are called "Particulars of Judicial Review". Those particulars are as follows:

1. The Plaintiff was the Defendant in CTTT proceedings heard on 22 and 23 November 2010 before Senior Member Buckley.
2. On 21 September 2011 the CTTT entered judgment as against the Plaintiff in these proceedings in the amount of $89,769.00.
3. There are a number of jurisdictional errors and/or errors of law on the face of the record as are described below.
4. Alternatively, the CTTT constructively failed to exercise its statutory power in making the decision.
5. The learned member failed in the following respects; a. Finding that the Plaintiff is liable to pay $ 10,106.00 to the Defendant for the repair to the councils (sic) foot paths in front of the property in circumstances where there was no evidence to support such a finding and no such obligation existed. b. Ordering the Plaintiff to pay amounts of GST to the Defendant in the circumstances that there was no evidence to support or ground such a finding. 5The First and Second Defendants move by Notice of Motion filed 26 September 2012 to strike out the Summons on the basis that it fails to disclose any basis for issue of a writ of certiorari, and that it be struck out as being vexatious and an abuse of process under r 13.4 UCPR. 6It must be said at the outset that a Motion to strike out a Summons, as opposed to a statement of claim which contains a pleading, is a little unusual. 7The decision of the CTTT was given on 21 September 2011 and appears to arise out of a dispute from a home building contract between the Plaintiff as the builder and the First and Second Defendants as the owners. Certain adverse findings were made by the decision of the Tribunal. That led the builder to appeal to the District Court pursuant to s 67 of the Consumer Trader and Tenancy Tribunal Act 2001. That appeal was heard and determined by Judge Knox SC on 2 May 2012. The appeal was dismissed: Strangas & Son Building Contractors Pty Ltd v Lim [2012] NSWDC 72. 8An appeal to the District Court may be made where the Tribunal has decided a question with respect to a matter of law. The basis for the dismissal of the appeal appears at paragraph [64] of the judgment of Judge Knox where he said: Here I do not see any error arising on a matter of law. Clearly there is a substantial issue of fact in these matters, for example, on whom the respective obligation to make payment to the council actually falls. There may well be an interpretative amount in relation to GST payments. However, in my view those matters should be the subject of determination in the CTTT in accordance with its procedures. Such re-hearings are contemplated under s 68. 9Thereafter the builders applied for a re-hearing in the CTTT. On 31 May 2012 the application for a re-hearing was refused. The brief written reasons said this: In the chairperson's delegate's view, the applicants have not established any of the grounds in s 68(2) to apply. They have not produced any evidence which is new or raised any issues which could not have been made in submissions. Further, the matters raised in para 2 of annexure B to the application have not been made out with sufficient clarity to establish the grounds referred to in s 68(2) of the CTTT Act, and in particular to establish that the Tribunal's decision was not fair and equitable. 10It was after that refusal that the Summons in the present proceedings was filed. The basis upon which the present Motion is brought is first of all that there are no errors of law demonstrated in the decision of the CTTT. It would be necessary for the obtaining of a writ in the nature of certiorari to establish at least an error of law on the face of the record. 11More particularly, the Motion is brought in reliance on the privative provisions contained in s 65 of the Consumer Trader and Tenancy Tribunal Act. That section provides: 65 Review by prerogative writ etc generally excluded (1) Except as provided by this section, a court has no jurisdiction to grant relief or a remedy by way of: (a) a judgment or order in the nature of prohibition, mandamus, certiorari or other relief, or (b) a declaratory judgment or order, or (c) an injunction, in respect of any matter that has been heard and determined (or is to be heard or determined) by the Tribunal in accordance with this Act or in respect of any ruling, order or other proceeding relating to such a matter. (2) A court is not prevented from granting relief or a remedy of a kind referred to in subsection (1) in relation to a matter in respect of which the jurisdiction of the Tribunal to determine the matter was disputed if the ground on which the relief or remedy is sought is that: (a) the Tribunal gave an erroneous ruling as to its jurisdiction, or (b) the Tribunal erred in refusing or failing to give a ruling as to its jurisdiction when its jurisdiction was disputed. (3) A court is not prevented from granting relief or a remedy of a kind referred to in subsection (1) in relation to a matter in respect of which the Tribunal has made an order if the ground on which the relief or remedy is sought is that: (a) the Tribunal had no jurisdiction to make the order, or (b) in relation to the hearing or determination of the matter, a party had been denied procedural fairness. 12The effect of s 65 is that the only way the decision of the CTTT can be called into question in this Court is if the Tribunal had no jurisdiction to make the order or a party had been denied procedural fairness in relation to the hearing or determination of the matter. 13The principal basis upon which it is put that certiorari is available to the builders in the present case is that the Tribunal decided matters without there being any evidence for the matters decided. My attention has been drawn in particular to item 31 of the Tribunal's decision, concerning Council footpaths. The reasons for the Tribunal in relation to that item are briefly stated in this way: i. Item 31: Council footpaths The builder contends that Mr Monteith conceded in his evidence that the local council holds a builder directly responsible for these costs, notwithstanding the end of the contract and therefore there is no obligation by the owners to pay for the rectification costs. This submission disregards cl. 18 of the contract which provides that the '''contractor must make good, at the contractor's own cost, any damage to footpaths and curbs to the council's satisfaction ". There is no cost to the owners but the builder must pay it pursuant to the terms of the contract. This sum is allowed as part of the contract obligations. 14Mr O'Connor, who appears for the builders, points particularly to the last two sentences of that part of the reasons, to say that the inference from what is said there is that there is a no evidence finding contained in those reasons. This is apparently because of a prima facie contradiction between the finding that there is no cost to the owners but that the builder must pay the item pursuant to the terms of the contract. In that regard Mr O'Connor has tendered a letter from the local Council to the builder's solicitors, saying that the Council wished to advise that there were no Council fees outstanding relating to the abovementioned property. 15If it is assumed that there is an error contained in those reasons, and that the error arose because there was no evidence to justify the finding, it may be that there is an error of law by reason of that finding: Azzopardi v Tasman UEB Industries (1985) 4 NSWLR 139 at 150 per Kirby P; RL & D Investments Pty Ltd v Bisby (2002) 37 MVR 479; [2002] NSWSC 1082 per Kirby J; followed in US Manufacturing Co Pty Ltd v ABB Service Pty Ltd [2008] NSWCSC 705 at [45] per Hall J. 16Mr O'Connor has directed my attention to what was said by Basten JA in Ballantyne v Workcover [2007] NSWCA 239 at 127, to suggest that a finding of an error of law may amount to a constructive failure to exercise jurisdiction and will thereby fall within the exception to the privative clause found in s 65(3) of the Consumer Trader and Tenancy Tribunal Act. It is necessary however to note in full what Basten J said. He said at [127]: ...Thirdly, it is a common fallacy that a claim of no evidence is a statement of law. If there is no evidence to support a particular finding, that may involve an error of law: an error of law on the part of the decision-maker in asserting that there is no evidence will only demonstrate legal error if it indicates a constructive failure to exercise jurisdiction, because material and uncontested facts have been ignored. 17In my opinion the reasons in relation to item 31 in the judgment do not on their face demonstrate a no-evidence finding. The basis for the decision that the sum should be allowed as part of the contractual obligations is said by the Tribunal to be the terms of the contract. Far from there being no evidence for the order that the builders must pay the item the Tribunal identified the evidentiary basis for the finding. The fact that there was a finding that there was no cost to the owner, but that the builder had an obligation under the contract to pay it, is not on its face anything to do with a no-evidence finding. 18Even if it were such a finding, however, and taking Basten JA's judgment at its highest, for that to amount to an error of law it would have to be shown that the error amounted to a constructive failure to exercise jurisdiction. A mere error in relation to either the interpretation of a contract, or whether there was evidence to justify the allowance of the sum, could not in my opinion remotely be described as a constructive failure to exercise jurisdiction. If it were to be so characterised, it would mean that every error made within jurisdiction, and based on a no-evidence finding, would amount to jurisdictional error. The authorities are clearly against the proposition. 19Attention has also been drawn to what was said by the High Court in Australian Broadcasting Corporation v Bond (1990) 170 CLR 321 at 359, where Mason J quotes with approval a judgment of the Full Court of the Federal Court in Minister for Immigration, Local Government and Ethnic Affairs v Pashmforoosh (Unreported, Federal Court, 28 June 1989) where the Full Court said: "Thus, decisions may be set aside because, being insufficiently supported by reason, they appear to be an improper exercise of the power conferred or arbitrary or because there was no evidence or other material sufficient to justify the making of the decision or the decision was so unreasonable that no reasonable person could have so exercised the power." 20Those remarks must be seen however in the context of an appeal from a decision reviewing a determination under the Administrative Decisions (Judicial Review) Act 1977 (Cth) where rights of review were provided in s 6 of that Act. A little later in the judgment of Pashmforoosh, as well as in the judgment in Bond, the bases for making the review under that Act are dealt with. In my opinion that judgment has little to say about whether an error, such as the present asserted, amounts to jurisdictional error. 21I was not taken to anything else in the Tribunal's judgment, and in particular, I was not taken to any matter concerning the order that the Plaintiff must pay amounts of GST - see paragraph 5 (b) of the Particulars of Judicial Review. 22There was a faint suggestion that the Plaintiff had been denied procedural fairness when the application for a re-hearing was refused. When I pointed out to Mr O'Connor that the only decision sought to be impugned was the decision of the Tribunal of 21 September 2011 he appeared to abandon the submission. 23In my opinion nothing has been demonstrated in relation to the judgment of the CTTT to show that there has been a denial of procedural fairness, or that there has been an error made which goes to the jurisdiction of the CTTT. The errors complained of appear to be no more than errors of fact. The only error of law was said to be a finding when there was no evidence to support the finding. Even if, contrary to what I determined earlier, an error of law is involved (the no-evidence point) such an error is not one that goes to the jurisdiction of the Tribunal. 24There is nothing in the material, therefore, which would enable the grant of an order in the nature of a writ of certiorari pursuant to s 69 of the Supreme Court Act 1970 in the face of s 65 Consumer Trader and Tenancy Tribunal Act. 25I bear in mind that the test is that as stated in Commissioner of Railways v General Steel Industries (1964) 112 CLR 125. In my opinion the First and Second Defendants demonstrate that the claim for certiorari is so hopeless that it satisfies the requirements of the tests in that case. 26The alternative relief sought, as I have said, is a declaration that the defendants would be unjustly enriched. Section 65(1) includes within the privative clause declaratory judgments for the granting of a relief or remedy. It would be necessary again to demonstrate that a jurisdictional error or a denial of procedural fairness has been established to justify the making of a declaration in those terms. 27Counsel for the builder did not address any arguments to this prayer in the Amended Summons. It appears to me to be quintessentially a matter of fact in dispute between the parties, and not a matter which goes either to jurisdiction or procedural fairness. 28For those reasons the application by the First and Second Defendants should be acceded to. 29The orders therefore that I make are: 1.The Summons and the Amended Summons are dismissed. 2.The Plaintiff is to pay the First and Second Defendants' costs of the proceedings.