OBRADOVIC v FAIR TRADING ADMINISTRATION CORPORATION [1997] NSWCA 238

OBRADOVIC v FAIR TRADING ADMINISTRATION CORPORATION

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SHELLER and COLE JJA 16 December 1997

[1997] NSWCA 238 Sheller and Cole JA

Motion

On 15 November 1996 Todd Obradovic filed a notice of appeal from

* a decision of Herron DCJ of 1 November 1996 setting aside a decision of the Registrar of the District Court of New South Wales to order a rehearing pursuant to s18 of the Arbitration (Civil Actions) Act 1983 (the Act), resulting in a judgment of the Court in the amount of $17,299.55, and

* that part of a decision of Sidis DCJ of 5 June 1996 referring back to an arbitrator, Mr Barnes, the question of interest under an award made by Mr Barnes.

On 13 March 1997 the respondent, Fair Trading Administration Corporation, then known as the Building Services Corporation (BSC), applied by notice of motion to have the appeal struck out as incompetent. Mr Obradovic sought leave to appeal, if the appeal was held to be incompetent.

By a statement of claim issued on 25 July 1990 the BSC began proceedings against Mr Obradovic, a licensed builder, to recover $16,666 being the amount expended by the BSC in paying another builder to rectify building work carried out by Mr Obradovic for a named proprietor. In the claim interest, pursuant to s83A of the District Court Act 1993 was sought. A defence was filed on 26 March 1991 and the matter set down for hearing by arbitration on 31 August 1994.

Mr Barnes heard the matter on 31 August 1994 and made an award on 16 December 1994. The arbitrator observed that on the case presented on the hearing, BSC's claim related solely to work required to rectify water penetration of a building erected by the plaintiff [sic the defendant]. The arbitrator said that it was established from the evidence that that part of the works which related to the rectification amounted to $9,067. The arbitrator added: