Sneyers v Fair Trading Administration Corp [2001] NSWSC 771

New South Wales Supreme Court

CITATION : Sneyers v Fair Trading Administration Corp [2001] NSWSC 771 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 13154/00 HEARING DATE(S) : 22/05/01 JUDGMENT DATE : 10 September 2001

PARTIES : Cornelis Johannes Sneyers (appellant) Fair Trading Administration Corporation (formerly Building Services Corporation) (respondent) JUDGMENT OF : Hidden J at 1

LOWER COURT Local Court JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT M Shepherd LCM JUDICIAL OFFICER :

COUNSEL : E M Ollson (appellant) J Smith (respondent) SOLICITORS : Breens (appellant) Hunt & Hunt (respondent) CATCHWORDS : LOCAL COURT - Appeal - action by respondent to recover money paid under BSC Comprehensive Insurance Scheme - question whether losses "reasonably incurred" Building Services Corporation Act 1989 LEGISLATION CITED : Home Building Act 1989 Local Courts (Civil Claims) Act 1970 CASES CITED : Builders' Licensing Board v Inglis (1985) 1 NSWLR 592 DECISION : Appeal dismissed

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HIDDEN J

Monday 10 September 2001

13154 of 2000 Cornelis Johannes Sneyers v Fair Trading Administration Corporation ( formerly Building Services Corporation)

Reasons for judgment

1 HIS HONOUR: This is an appeal from the decision of a magistrate in a civil claim in which the respondent, now known as the Fair Trading Administration Corporation, was the plaintiff and the appellant, Cornelis Johannes Sneyers, was the defendant. 2 At the time of the events giving rise to the proceedings, the respondent was known as the Building Services Corporation and its functions were prescribed by the Building Services Corporation Act 1989 (now the Home Building Act 1989). The purpose of that Act was to regulate the residential building industry and, among other things, to provide for the licensing of building contractors and for an insurance scheme to which home owners who engaged a licensed contractor might have recourse if the building work proved to be defective. 3 Section 91(1)(a) of the Act enabled the establishment by regulation of the BSC Comprehensive Insurance Scheme, which was to be found in Form 4 of Schedule 1 to the Building Services Corporation Regulation 1990. Under that Scheme, an owner (termed a "beneficiary") might be indemnified by the Corporation for losses "reasonably incurred" in rectifying defects in building work undertaken by a licensed contractor because of bad workmanship, unsuitable materials, and the like: clause 5(1)(d) of the Scheme. By s98(1) of the Act, the Corporation was entitled to recover any amount paid under the Scheme from the building contractor in a court of competent jurisdiction. 4 The appellant is a licensed builder. In 1995 he was engaged by Peter Pace-Feraud and his wife, Jennifer Pace-Feraud to undertake renovations and additions to their home at North Ryde. Eventually, Mr and Mrs Pace-Feraud complained to the respondent about defective work and made a claim upon the Comprehensive Insurance Scheme for rectification of it. After investigation, the respondent met the claim in an amount of about $30,000. At the end of 1996 it commenced proceedings against the appellant for recovery of that amount. The matter came on for hearing in October 2000 at Fairfield Local Court and the learned magistrate gave judgment for the respondent. It is against that decision that this appeal is brought. 5 It is unnecessary to recite all the issues which were contested in the Local Court, or indeed, the various grounds of appeal which were advanced in this Court. The appellant was unrepresented in the Local Court. Some of the grounds of appeal challenged the adequacy of the evidence led by the respondent and questioned whether the learned magistrate had conducted the proceedings in such a way as to allow for the appellant's lack of legal representation. At the hearing of the appeal it was acknowledged that these grounds did not raise a question of law, which is necessary to found an appeal such as this: s69(2) of the Local Courts (Civil Claims) Act 1970. 6 Ultimately, the argument centred on one issue: did his Worship have regard to evidence suggesting that Mr and Mrs Pace-Feraud had repudiated the building contract before the appellant had had an opportunity to complete the required work? Evidence to that effect might have borne upon the question whether the losses for which the respondent indemnified Mr and Mrs Pace-Feraud were reasonably incurred, as clause 5 of the Comprehensive Insurance Scheme required: cf Builders' Licensing Board v Inglis (1985) 1 NSWLR 592. 7 Paragraph 5 of the grounds of defence in the Local Court asserted: Certain work which was unfinished could not be completed because of non-payment by the owners for earlier work and/or refusal by the owners of access to the site by the defendant.