Batshon v Elias & Ors [1999] NSWSC 546

New South Wales Supreme Court CITATION : Batshon v Elias & Ors [1999] NSWSC 546 revised - 29/06/99 CURRENT JURISDICTION : Administrative Law Division FILE NUMBER(S) : ALD 30105/98 HEARING DATE(S) : 3 June 1999 JUDGMENT DATE : 3 June 1999

PARTIES : Samir Batshon v Nabil Elias; Denise Elias; Building Disputes Tribunal JUDGMENT OF : Davies AJ at 1

LOWER COURT JURISDICTION : Building Disputes Tribunal LOWER COURT FILE NUMBER(S) : BPA97/294 LOWER COURT JUDICIAL OFFICER :

Plaintiff - D. Re COUNSEL : Defendants 1 & 2 - M. Gilmour Defendant 3 - Submitting Plaintiff - Stephen Hodges SOLICITORS : Defendants 1 & 2 - C.L. Pacey, Parramatta Defendant 3 - I.V.Knight, State Crown Solicitor, submitting. CATCHWORDS : Judicial review ACTS CITED : Consumer Claims Tribunal Act 1987 (NSW) Archcom Ltd v Consumer Claims Tribunal & Ors (unreported, Administrative Law Division, 29/9/95) CASES CITED : Hales v Consumer Claims Tribunal & Anor (1990) ASC 55-985 Sanford v Marjen Building Contractors Pty Ltd (1992) ASC 56-1248 WD & HO Wills Australia Ltd v Consumer Claims Tribunal (NSW) & Anor (unreported, CA, 23/9/98) DECISION : Application dismissed with costs.

THE SUPREME COURT OF NEW SOUTH WALES ADMINISTRATIVE LAW DIVISION

ALD 30105/98

DAVIES AJ

Thursday, 3 June 1999

SAMIR BATSHON v NABIL ELIAS & ORS

JUDGMENT 1 HIS HONOUR: These proceedings seek judicial review of an order of the Consumer Claims Tribunal (NSW) made on 28 May 1998 under section 30 of the Consumer Claims Tribunal Act 1987 (NSW) ("the Act") that the plaintiff, Mr Samir Batshon, and a Mr Johnson, pay the sum of $20,175 to Mr and Mrs Elias, the first and second defendants. 2 Section 12 of the Act permits judicial review proceedings to be brought in relation to such an order to be brought on the ground that the Tribunal had no jurisdiction to make the order, or that in relation to the hearing or determination a party to the claim was denied natural justice. The ground now relied upon in these proceedings is that the Tribunal had no jurisdiction to make the order, other grounds not having not been pursued. 3 Under s 10(1) of the Act, the Tribunal has jurisdiction to hear and determine consumer claims which are defined in section 3 to include claims by a consumer for the payment of a specified sum of money. Section 12A defines a building claim to include inter alia: " (a) the payment of a specified sum of money, or ..... (c) relief from payment of a specified sum of money, ..... that arises from a supply of building goods or services, whether under a contract or not, or that arises under a contract that is collateral to a contract for the supply of building goods or services. " 4 The term "building goods and services" is also defined and includes goods or services supplied for or in connection with the carrying out of residential building work. Section 12B provides inter alia that a building claim is to be considered to be a consumer claim. Section 32 of the Act imposes a limitation upon the jurisdiction of the Tribunal, and provides inter alia: " (1) A tribunal has no jurisdiction to make in respect of a particular consumer claim an order or orders in favour of the claimant or, where there are 2 or more claimant, in favour of those claimants if the total of: