Kostas v HIA Insurance Services Pty Limited [2010] HCA 32

HIGH COURT OF AUSTRALIA

FRENCH CJ,

HAYNE, HEYDON, CRENNAN AND KIEFEL JJ

PETER KOSTAS & ANOR APPELLANTS

AND

HIA INSURANCE SERVICES PTY LIMITED

T/AS HOME OWNERS WARRANTY & ANOR RESPONDENTS

Kostas v HIA Insurance Services Pty Limited [2010] HCA 32

29 September 2010

S84/2010

ORDER

1. Appeal allowed.

2. Set aside the order of the Court of Appeal of the Supreme Court of New South Wales made on 16 September 2009 and, in lieu thereof, order that the appeal to that Court be dismissed with costs.

3. First respondent to pay the costs of the appellants.

On appeal from the Supreme Court of New South Wales

Representation

J T Gleeson SC with R J Carruthers for the appellants (instructed by Pryor Tzannes & Wallis)

B W Walker SC with F R Clark and E Raper for the first respondent (instructed by Mills Oakley Lawyers)

Submitting appearance for the second respondent

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Kostas v HIA Insurance Services Pty Limited

Courts – Appeals – Jurisdiction and powers – Section 67(1) of Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) provided for appeal from Consumer, Trader and Tenancy Tribunal to Supreme Court "[i]f, in respect of any proceedings, the Tribunal decides a question with respect to a matter of law" – Appellants purported to terminate building contract because of builder's failure to meet obligations – Validity of termination turned on disputed claims for extension of time – Tribunal decided that material properly before it supported conclusion that disputed claims for extension had been served – Whether that question could be raised on appeal to Supreme Court – Whether "no evidence ground" raises question of law.

Words and phrases – "question with respect to a matter of law", "no evidence ground".