Lewis & Anor v Registrar Consumer Claims Tribunal & Anor. [1999] NSWSC 381

New South Wales Supreme Court CITATION : Lewis & Anor v Registrar Consumer Claims Tribunal & Anor. [1999] NSWSC 381 revised - 27/04/99 CURRENT JURISDICTION : Administrative Law Division FILE NUMBER(S) : 30066/98 HEARING DATE(S) : 21 April 1999 JUDGMENT DATE : 27 April 1999

PARTIES : Michael and Maree Lewis v Registrar Consumer Claims Tribunal and Ideal Roofing Pty Ltd JUDGMENT OF : Bell J at 1

LOWER COURT JURISDICTION : Consumer Claims Tribunal LOWER COURT FILE NUMBER(S) : BHU97/8 LOWER COURT JUDICIAL OFFICER :

COUNSEL : Mr. C.R. Newlinds (Second Defendant) SOLICITORS : Mrs Maree Lewis (First Plaintiff) appeared for Plaintiffs Ellis & Baxter (Second Defendant) CATCHWORDS : Consumer Claims Tribunals Act 1987; Denial of natural justice ACTS CITED : Consumer Claims Tribunals Act 1987 Archcom Pty Ltd and Consumer Claims Tribunal and Ors (unreported 29 September 1995) Carpet Fashion Pty Ltd v Consumer Claims Tribunal (unreported NSWSC Ireland J 20 October 1992 CASES CITED : Ciciwill Pty Ltd v Consumer Claims Tribunal & Ors (1997) 41 NSWLR 737 Maxwell-Smith v Consumer Claims Tribunal & Anor (unreported NSWSC Greg James J) 8 December 1998 Hutley v Meigan & Ors. (unreported 19 December 1996) Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 DECISION : See para. 40

16 IN THE SUPREME COURT OF NEW SOUTH WALES ADMINISTRATIVE LAW DIVISION

BELL J

Tuesday, 27 April 1999

30066/98 - LEWIS & ANOR. v REGISTRAR CONSUMER CLAIMS TRIBUNAL & ANOR.

JUDGMENT

1 HER HONOUR: In these proceedings the plaintiffs, Michael and Maree Lewis, seek an order setting aside a determination made by a referee in the Consumer Claims Tribunal in proceedings commenced against them by Ideal Roofing Pty Ltd, the second defendant. A declaration is sought that the plaintiffs were denied natural justice in the proceedings before the Tribunal. 2 The plaintiffs appeared in person in the proceedings before me. Maree Lewis is admitted to practice as a solicitor and she conducted the proceedings on behalf of herself and her husband. 3 In April 1996 the Lewises were renovating their home at 12 Westringia Place, Gymea Bay. They obtained a quote from Ideal Roofing Pty Ltd for the installation of a new roof at those premises. The quote obtained from Ideal Roofing was for the supply and installation of a "0.60 Colorbond custom orb sheeting curved to radius" roof. On or about 29th April 1996 the plaintiffs accepted the defendant's quotation. Thereafter it appears that work commenced on the installation of the roof. That work was attended by delays. The reason for those delays is a matter of controversy as between the parties. Ultimately, and prior to the completion of the roof, the plaintiffs purported to terminate the contract. At the time this was done the roof as installed comprised a corrugated G300 0.60 thickness roof supplied by Stramit Industries. 4 It appears that proceedings were first commenced before the Consumer Claims Tribunal by the plaintiffs seeking an order relieving them from having to pay the second defendant the sum of $15,980 being the price upon which they had agreed for the installation of the roof. Subsequently the plaintiffs withdrew those proceedings. Thereafter the second defendant commenced proceedings before the Tribunal seeking to recover monies due to it in respect to the supply and installation of the roof. The claim was brought under Part 3A of the Consumer Claims Tribunals Act 1987 which makes provision for building claims including claims for the supply of building goods or services. 5 Central to the issues before the referee in the subject proceedings was the contention that the plaintiffs had contracted for the installation of a roof made of BHP's custom blue orb factory curved sheeting. The roof as installed, namely the G300 corrugated 0.60 sheets, was not factory curved but rather sprung curved on site. The plaintiffs considered that the BHP product was superior to that produced by Stramit Industries. The original quote was for "0.60 Colorbond custom orb sheeting curved to radius". The plaintiffs sought to establish that this was clearly a reference to sheeting wholly produced by BHP. They led evidence before the referee to establish that "custom orb" is a BHP trademark. The second defendant led evidence from two witnesses to the effect that "custom orb" is a generic term used with reference to curved Colorbond roofs. The roof as installed comprised steel manufactured by BHP but corrugated by Stramit Industries. A complicating factor was that the description in the quote did not accurately fit the BHP product in that BHP 0.60 factory curved sheets are correctly described as "custom blue orb". BHP's "Custom orb" does not come in thickness 0.60. 6 The proceedings appear to have occupied hearing time before the referee at the Consumer Claims Tribunal on a number of occasions. Oral evidence was given and a number of expert reports were tendered. The referee invited the parties to present written submissions. In the light of the fact that Mrs Lewis is legally qualified the referee allowed the second defendant to be represented. He reserved his decision. He had before him both the second defendant's claim together with what was described as a cross-claim by the plaintiffs. This is annexure "T" to the affidavit of Maree Lewis sworn on 25th June 1998. In this cross-claim the plaintiffs sought an order for payment in an amount of $18,500 being the costs of removing the sprung curved Stramit roof and replacing it with a BHP custom blue orb factory curved roof together with some associated costs. 7 On 1st June 1998 the referee's determination was handed down. He found that "custom orb" although a BHP trademark is a generic term used to describe curved Colorbond roofs. He accepted the Lewis' evidence that they had wanted only the BHP product and that, had they been aware the sheeting was corrugated by another company, they would have had nothing to do with it. However, he rejected any attempt to distinguish the BHP and Stramit products in terms of quality. He found the product used on the plaintiffs' roof to be at least equal to BHP "custom blue orb" sheeting. He rejected the plaintiffs' cross claim. The second defendant had conceded that the plaintiffs were entitled to credit for certain work not done leaving its claim as one for the payment of $12,425. The referee allowed the second defendant's claim in the amount of $11,000. He discounted the total sum claimed to reflect the circumstance that the second defendant should have been more careful in its tender and ought to have put the plaintiffs on notice of its intention to use a non-BHP corrugated product. 8 As to the scheme of the Act generally, I note the observations of Simpson J in Archcom Pty Ltd and Consumer Claims Tribunal and Ors (unreported, 29th September 1995): "At the outset it is worth recalling that the Act 'has set up a system for the speedy and inex"pensive disposal of certain claims, limited in amount, arising out of contracts for the supply of goods or the provision of services by a person carrying on (or holding himself out as carrying on) the business of supplying such goods or providing such services'. (Singer v Statutory Officers Remuneration Tribunal (1985) 5 NSWLR 633 per Hunt J). Those remarks were made in the context of the predecessor of the Act, a 1974 Act by the same title, but they apply equally to the Act. Underpinning the Act is a policy of providing expeditious access to an inexpensive and informal process for the resolution of consumer disputes involving relatively small amounts of money." 9 Section 34 of the Consumer Claims Tribunals Act 1987 provides that an order of a tribunal is final and binding on all parties to a consumer claim that is heard and determined by it and no appeal lies in respect of its orders. Section 12 of the Act immunises the Tribunal from judicial review save for matters caught by sub-section (2). That subsection is as follows: "(2) A court is not precluded from granting relief or a remedy of a kind referred to in sub-section (1) if, in respect of a consumer claim: (a) a Tribunal has given a ruling under Section 26 or refused or failed to give such a ruling after the jurisdiction of the Tribunal to hear and determine the claim has been disputed by a party to the claim and the ground on which the relief or remedy is sought is that: (i) the ruling was erroneous, or