Woodcrest Homes Pty Ltd v Fair Trading Tribunal & Ors [2002] NSWSC 552

New South Wales Supreme Court

CITATION : Woodcrest Homes Pty Ltd v Fair Trading Tribunal & Ors [2002] NSWSC 552 revised - 1/07/2002 FILE NUMBER(S) : SC 13084/01 HEARING DATE(S) : 16/4/02 JUDGMENT DATE : 1 July 2002

Woodcrest Homes Pty Ltd (Plaintiff) PARTIES : Fair Trading Tribunal (1st Defendant) Tavaceen Pty Limited (2nd Defendant) JUDGMENT OF : Bell J at 1

COUNSEL : V. Stefano (Plaintiff) P. Merity (Sol) (2nd Defendant) SOLICITORS : Williams & Co (Solicitors) (Plaintiff) Peter Merity, Solicitor (Defendant) DECISION : Extend the time within which to institute this appeal pursuant to Pt 51A r (3)(3) of the SCR; Affirm the orders made by the Tribunal in each of proceedings BU 2000/2762 and BU 2000/6761 on 6 August 2001; Dismiss the plaintiff's summons; The plaintiff is to pay the defendant's costs as agreed or assessed

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

BELL J

Monday 1 July 2002

13084/01 Woodcrest Homes Pty Limited v Fair Trading Tribunal (1st Defendant) and Taveceen Pty Limited (2nd Defendant)

JUDGMENT 1 BELL J: By summons filed on 2 October 2001 the plaintiff appeals from the whole of the decisions of Mr Patrick Griffin, a member of the Fair Trading Tribunal ("the Tribunal"), made on 21 February 2001 and 6 August 2001. 2 The appeal is brought pursuant to s 61(1) of the Fair Trading Tribunal Act 1998 ("the FTT Act") which, relevantly, provides that a party to proceedings before the Tribunal may appeal to this Court on a question of law against any decision of the Tribunal in the proceedings. The orders that this Court on appeal may make include an order affirming or setting aside the decision of the Tribunal. 3 The appeal was not commenced within time. The plaintiff seeks an extension of time in which to bring its appeal pursuant to Part 51A rule 3 of the Supreme Court Rules 1970 (the "SCR"). The grant of an extension of time was not opposed. I propose to grant the extension sought. 4 The plaintiff ("Woodcrest") filed an application in the Tribunal's Building Division on 24 June 2000 seeking an order that the second defendant, Taveceen Pty Limited ("Taveceen"), pay to it the sum of $284,650.91 said to be owing under a building agreement entered into between the two in December 1998. 5 In August 2000 Taveceen made application to the Tribunal that Woodcrest provide security for costs. 6 Taveceen's application for security for costs was heard on 11 October 2000. On 21 February 2001 the Tribunal ordered that Woodcrest provide security for costs in the proceedings in the sum of $25,000 by 5:00 pm on Friday 23 March 2001. 7 On 20 March 2001 an application was filed pursuant to s 63 of the FTT Act for an order directing that the Tribunal rehear the matter. That application was successful and a rehearing was conducted before Mr Griffin on 9 July 2001. The rehearing was expressed to be limited to a consideration of the threshold issue of whether the Tribunal had the power to make an order for security for costs. On 6 August 2001 the Tribunal published its decision holding that there was no reason to depart from it earlier reasons and made an order that Woodcrest provide security for costs in the proceedings in the sum of $25,000 by 5:00 pm on Friday 21 August 2001. All proceedings were, by the order, stayed until the security was provided.