FAI General Insurance Co Ltd v Jameson & Ors [2000] NSWSC 1032

New South Wales Supreme Court

CITATION : FAI General Insurance Co Ltd v Jameson & Ors [2000] NSWSC 1032 revised - 22/11/2000 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 30056/00 HEARING DATE(S) : 31 October 2000, 1 November 2000 JUDGMENT DATE : 31 October 2000

FAI General Insurance Company Limited (Plaintiff) PARTIES : Gregory Jameson (First Defendant) Tracey Jameson (Second Defendant) Fair Trading Tribunal (Third Defendant) JUDGMENT OF : Adams J at 1

LOWER COURT Fair Trading Tribunal JURISDICTION : LOWER COURT BU 1999/759 FILE NUMBER(S) : LOWER COURT Mr S Forbes JUDICIAL OFFICER :

Dr G Flick SC with Mr R Hollo (Plaintiff) COUNSEL : Mr A J J Thompson (First & Second Defendants) Mr R N Gye (Third Defendant) Phillips Fox (Plaintiff) SOLICITORS : North & Badgery (First & Second Defendants) I V Knight (Third Defendant) Home Building Act 1989 LEGISLATION CITED : Fair Trading Tribunal Act 1998 Fair Trading Tribunal Regulation 1999 DECISION : See paragraphs 19 and 20

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ADAMS J

TUESDAY 31 OCTOBER 2000 30056/2000 FAI GENERAL INSURANCE COMPANY LIMITED v GREGORY JAMESON AND OTHERS JUDGMENT

1 HIS HONOUR: Mr and Mrs Jameson built a house. Certain defects became apparent. They claim that these defects require the house to be demolished and rebuilt. They made a claim against FAI General Insurance Company Limited (FAI) for indemnification in respect of the cost of that demolition and rebuilding. FAI is of the opinion that the house is not so seriously defective as to warrant the extreme step of demolition but considers that the defects which have become apparent can be corrected by the builder who, indeed, has indicated a willingness to do so. 2 It seems to be agreed that the cause of the defects is a shifting concrete slab upon which the house is built. On the one hand, it is contended by the Jamesons that that shifting is already very serious and will become more substantial as time goes on, so that the house will never be without serious defects. On the other hand FAI says, although there has been some movement, the slab will shortly stabilise and that after the present defects are fixed there should be no further problem. 3 The Jamesons were unhappy with this response and appealed to the Fair Trading Tribunal, under s 84 of the Home Building Act 1989, against the decision of FAI. FAI sought to have joined to those proceedings the builder and the geotechnical engineer. The Tribunal refused to permit this joinder. I am satisfied that the essential reason for this refusal was the view that there was no jurisdiction in the circumstances for it to do so. This view may be conveniently summarised in the following paragraphs from the Tribunal's reasons for decision - "92. The joining of all likely third parties to the hearing of the application may be seen as a prudent convenience by the insurer to seek to facilitate any future recovery, or contribution elsewhere, of any amount which the insurer could be ordered to pay by this Tribunal. However, the dispute which this Tribunal must exclusively focus upon, is in my view, restricted and confined to that dispute between the applicant and the insurer. 93. The dispute, put quite simply, involves an appeal against the insurer's decision. Nothing more. " 4 The Fair Trading Tribunal Act 1998 provides for the grant of relief by this Court upon the ground, amongst others, that "the Tribunal gave a ruling as to its jurisdiction that was erroneous": 60(2)(a). Although in terms the member did not advert to the jurisdiction of the Tribunal as to joinder I have come to the conclusion that his refusal to permit joinder was indeed a decision by him as to his jurisdiction. 5 The procedures in the Fair Trading Tribunal are directed to permit the determination of disputes falling within its purview with as little formality as possible having regard to the nature of the disputes and the requirement of procedural fairness. That this is so is explicitly stated in s 27(3) of the Fair Trading Tribunal Act 1998 which states - "Procedure of Tribunal generally (3) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice".