Tanous -v- Zielinska [2000] NSWSC 789

New South Wales Supreme Court

CITATION : Tanous -v- Zielinska [2000] NSWSC 789 CURRENT JURISDICTION: Equity Division Commercial List FILE NUMBER(S) : SC 50067/00 HEARING DATE(S) : 26.7.2000 JUDGMENT DATE : 26 July 2000

PARTIES : Gordy Tanous -v- Danula Zielinska JUDGMENT OF : Hunter J

COUNSEL : Plaintiff: M F Galvin Defendant: T Moore SOLICITORS : Plaintiff: C R Fitzsimons Solicitor Defendant: Hovan & Co DECISION : The motion and summons are dismissed and I order the plaintiff to pay the defendant's costs of the proceedings and of the motion.

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

COMMERCIAL LIST

HUNTER J

WEDNESDAY, 26 JULY 2000

050067/00 - GORDY TANOUS v DANULA ZIELINSKA

REASONS FOR JUDGMENT

1 These proceedings were instituted by summons seeking the following relief: "1. An order pursuant to Section 61 of the Fair Trading Tribunal Act 1998 that the Notice of Order of the Fair Trading Tribunal dated 10 May 2000… be set aside.

2. Declaration that the said Notice of Order is void and of no effect.

3. A declaration that the said Notice of Order contains an error of law.

4. An order that the case be remitted to the Tribunal for further hearing.

5. An order staying the Notice of order and further conduct of the matter before the Fair Trading Tribunal."

2 In aid of paragraph 5 of the claims for relief the plaintiff moved by Notice of Motion of 31 May 2000 for the following order: "1. That the hearing of matter BU1999/1497 between the defendant as applicant and the plaintiff as respondent before the Fair Trading Tribunal of New South Wales be stayed until further order of this court." 3 On the return of that motion and of the summons the Court was informed that regardless of the outcome of these proceedings, that there were further outstanding disputes to be resolved before the Fair Trading Tribunal. 4 It was also apparent that the amount in issue was not so great as to make the incidence of costs of only passing importance. For those reasons, rather than dispose of the motion, I directed that the parties complete preparation for hearing and fixed the matter for hearing today. 5 The decision appealed against is that of Christine Paull of 10 May 2000 (the FTT decision). By that decision she found that the plaintiff (the respondent in the tribunal) had repudiated a building agreement of 22 October 1998 (the contract) made by him as builder with the defendant (the applicant in the tribunal) as proprietor. 6 The proceedings were conducted in the tribunal on documents and statements with no oral evidence adduced by either party. 7 There was a statement of agreed facts referred to in the FTT decision which is not before me but which accords with the agreed chronology which is part of the agreed bundle of documents, exhibit A. 8 The FTT decision noted an agreement of the parties that, as at 10 May 1999, that the proprietor had failed to "put into writing item 5 in variation number 6, being a prospective variation, and that her failure to do so triggered the (builder's) right to serve the Suspension Notice under clause 18 (f) of the Agreement". 9 Clause 11 of the contract provided as follows: "This Agreement and the Builder Works may only be varied in writing AND signed by the Contractor and the Owner.