WM Van Heeswyk Pty Limited v Fair Trading Administration Corporation [2001] NSWSC 190

New South Wales Supreme Court

CITATION : WM Van Heeswyk Pty Limited v Fair Trading Administration Corporation [2001] NSWSC 190 FILE NUMBER(S) : SC 10977/00 HEARING DATE(S) : 22/2/2001 JUDGMENT DATE : 22 February 2001

PARTIES : WM Van Heeswyk Pty Limited Fair Trading Administration Corporation JUDGMENT OF : Dowd J at 1

LOWER COURT Local Court JURISDICTION : LOWER COURT 6222/98 FILE NUMBER(S) : LOWER COURT Price M JUDICIAL OFFICER :

COUNSEL : Ms E Kennedy - Plaintiff Mr M Cohen - Defendent SOLICITORS : Snelgrove & O'Brien Solicitors - Plaintiff Abbott Tout Solicitors - Defendant CATCHWORDS : Stated case - Residential building work - Rectification work - Admissibility of documents Building Services Corporation Act 1989 LEGISLATION CITED : Evidence Act 1995 Local Court (Civil Claims) Act 1970 CASES CITED : Calderbank v Calderbank [1975] 3 All ER 333. DECISION : 1. Appeal dismissed with costs; 2. Costs on an indemnity basis refused.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

DOWD J

22 FEBRUARY 2001

10977/00

W M VAN HEESWYK PTY LIMITED v FAIR TRADING ADMINISTRATION CORPORATION JUDGMENT

1 DOWD J: This appeal proceeded by way of an Amended Summons by the appellant, the defendant in proceedings brought by the Fair Trading Administration Corporation ('FTAC') under the Local Court (Civil Claims) Act 1970, such Amended Summons being filed on 19 June 2000. The Summons firstly sought that leave be granted to the applicant to bring this appeal. There was no contest to the application before me that this was an appeal as of right. 2 The appeal is against the entirety of the Learned Magistrate's decision. The appellant contended that His Worship was erroneous both in finding that the appellant did building work in accordance with s3 of the Building Services Corporation Act 1989 ('the Act'), and in finding that the appellant was a person who contracted to do, or did, residential building work in accordance with s3 of the Act. The appellant further claimed that it was not indebted to the FTAC in the amount of $26,220, the subject of the original claim and that the Summons did not comply with the provisions of the Rules. 3 A Notice of Issues was filed, by leave granted by me. The FTAC filed, with leave granted by me, an application for leave to file a Notice of Contention. I ordered that that document, for the purposes of this hearing, shall constitute the Notice of Contention. 4 The dispute related to allegations that certain building work was carried out in relation to a property situated at 11 Kedron Place, St Johns Park. That property was part of a cluster of dwellings erected, and showed certain defects. Those defects were rectified to the extent of the amount found to be owing under the judgment of the court below. 5 The original proceedings were brought under s98(1) of the Act against the appellant for recovery of the moneys paid out by the FTAC for rectification work carried out as a debt due. The FTAC contended that the original work was done by the appellant. 6 "Residential building work" is defined in s3 of the Act as: "Any work involved in, or involved in co-ordinating or supervising any work involved in: a) the construction of a dwelling, or b) the making of alternations or additions to a dwelling, or c) the repairing, renovation, decoration or protective treatment of a dwelling. · It includes specialist work done in connection with a dwelling and work concerned in installing a prescribed fixture or approvals in a dwelling (or in adding to, altering or repairing any such installation). · It does not include work that is declared by the regulations to be excluded from this definition."