Onslow v Cullen [2022] NSWSC 1257

Supreme Court New South Wales

Medium Neutral Citation: Onslow v Cullen [2022] NSWSC 1257 Hearing dates: 14 September 2022 Decision date: 19 September 2022 Jurisdiction: Common Law Before: Adamson J Decision: (1) Allow the appeal. (2) Set aside orders 1, 2 and 3 made by Hosking LCM on 19 November 2021. (3) In lieu of the orders referred to in (2) above, order judgment for the plaintiffs (in the Court below, the defendants in this Court) in the sum of $11,985.22 together with pre-judgment interest pursuant to s 100 of the Civil Procedure Act 2005 (NSW) from 4 April 2017 to 19 November 2021. (4) Direct the parties to send to my Associate by email an agreed interest calculation in order that the judgment sum, including pre-judgment interest, can be specified. (5) Reserve the costs of the hearing in the Local Court. (6) Direct the parties to agree on a timetable for submissions and evidence relating to order (5) above and send the timetable to my Associate in order that directions can be made in accordance with the parties' agreement. (7) Subject to order (8) below, order the defendants (the plaintiffs in the Local Court) to pay the plaintiff's (the defendant in the Local Court) costs of the proceedings in this Court. (8) If any party seeks a different order from order (7), written application together with evidence and submissions in support is to be provided to my Associate within seven days of these orders. (9) Grant liberty to apply on 3 days' notice. Catchwords: BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — Statutory warranty — Proceedings for breach — where contract extracted statutory warranties — where proceedings for minor defect brought after two years — where magistrate found limitation periods in s 18E did not apply — where prefatory words "to the extent required by the Home Building Act" used — held to incorporate limitation period APPEALS — Procedural fairness — where party made concession in case summary prepared in accordance with practice note — where magistrate disregarded concession — held to constitute a denial of procedural fairness APPEALS — Procedural fairness — Failure to give reasons — where preliminary ruling made subject to any authorities being brought to magistrate's attention — unorthodox approach — failure to address principal submissions of one party in reasons APPEALS — from Local Court to Supreme Court — where grounds involved statutory interpretation and denial of procedural fairness — where held to involve questions of law — leave not required Legislation Cited: Civil Procedure Act 2005 (NSW), ss 15, 56, 57, 100 Home Building Act 1989 (NSW), ss 7, 18B, 18BA, 18E, 18G Limitation Act 1969 (NSW), ss 7, 14 Local Court Act 2007 (NSW), ss 27, 39 Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 50.3(1)(a). Cases Cited: Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337; [1982] HCA 24 Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64; [1991] HCA 54 Dare v Pulham (1982) 148 CLR 658; [1982] HCA 70 Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Ltd (2006) 67 NSWLR 402; [2006] NSWSC 343 Fillipou v Coates Hires Operations Pty Limited [2011] NSWSC 986 Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115; [2007] HCA 61 MGIL Pty Limited v Maria Di Giannantonio as Executrix of the deceased estate of Michele Di Giannantonio [2013] NSWSC 1113 R v A [2004] NSWCCA 292 R v Birks (1990) 19 NSWLR 677 R v PL [2009] NSWCCA 256; (2009) 199 A Crim R 199 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 Robinson v Harman (1848) 1 Exch 850; 154 ER 363 Scoway Pty Ltd v Faxon Pty Ltd [2004] FCA 249 Seltsam Pty Limited v Ghaleb [2005] NSWCA 208 Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697 Texts Cited: John Carter, Carter on Contract (7th ed, 2018, LexisNexis), Ch 14 Category: Principal judgment Parties: Adam Onslow (Plaintiff) Gary Cullen (First Defendant) Melanie Cullen (Second Defendant) Representation: Counsel: M Klooster (Plaintiff) M Walsh (Defendants)