VAUGHAN v ROBERTSON & 2 ORS [2002] NSWSC 708

New South Wales Supreme Court

CITATION : VAUGHAN v ROBERTSON & 2 ORS [2002] NSWSC 708 CURRENT JURISDICTION: Common Law Division Administrative Law List FILE NUMBER(S) : SC 30058/02 HEARING DATE(S) : 30 July 2002, 7 August 2002 JUDGMENT DATE : 7 August 2002

David Vaughan (Plaintiff)

v PARTIES : Bo Robertson (First Defendant) Scott Robertson (Second Defendant) Consumer Trader & Tenancy Tribunal (Third Defendant) JUDGMENT OF : Adams J at 1

LOWER COURT Consumer Trader & Tenancy Tribunal JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER :

J Kirk (Plaintiff) COUNSEL : P Stitz (First and Second Defendants) Ms Kiu (Third Defendant) SOLICITORS : The Builders' Lawyer (Plaintiff) Turnbull Bowles Lawyers Pty Limited (Defendants) LEGISLATION CITED : Home Building Act 1989 DECISION : Stay ordered as to $40,000 of the judgment; Costs reserved

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST

ADAMS J

WEDNESDAY 7 AUGUST 2002 30058/02

DAVID VAUGHAN v BO ROBERTSON & ORS

JUDGMENT

1 HIS HONOUR: This is an application for a stay of a judgment given by the Consumer Trader and Tenancy Tribunal arising out of a building contract. The builder was unsuccessful below for a number of reasons, which I do not think I have to deal with in any detail, and appeals to this Court upon a number of grounds. 2 One ground seems to me to be more than reasonably arguable and that concerns a submitted error as to the interpretation of s10 of the Home Building Act 1989. In brief, the builder terminated the contract because of what he alleged were breaches by the clients. The Tribunal did not consider whether he was entitled to terminate, having concluded that he was not entitled to terminate by virtue of the Tribunal's interpretation of s10. The extent to which, in the circumstances of this case, that was a significant matter in the result is uncertain but I am doubtful that, having regard to the way in which the Tribunal calculated the damages payable to the clients, a substantial variation would have resulted even had this decision gone in the builder's favour. 3 The builder also points to a submitted failure in the Tribunal to give reasons in respect of a finding of liability for rectification and water damage. If arguable, these matters are only barely so. In order to make them out I think the builder must not only point to the terms of the Tribunal's judgment but also to the way in which the matter was fought below. My own glancing view suggests that there is little of practical substance in these grounds of appeal but I could not go so far as to say that (as I see the matter at present) they are not arguable. 4 The consequences of this building contract have been very serious for both parties and both have suffered from hardship arising out of it. In dealing with this calculus I think it is right that I should bear in mind that the Tribunal accepted, after substantial evidence and argument, that the builder had substantially failed in his obligations to construct the clients' house to a proper and workmanlike standard. That is to say there appears to me, as I presently see the matter (although of course this may not survive a full argument) that, of the parties, the builder was significantly at fault. It was also submitted on behalf of the builder that he will encounter difficulties in obtaining repayment of the judgment debt from the clients, should he ultimately succeed in his appeal. The basis for this submission is, essentially, that the latter propose to expend the funds to make good the alleged (and, thus far, proved) shortcomings in the construction of the building in issue in the case. I do not consider that this is sufficient reason to deny the clients the benefit of their judgment. However, the circumstances as a whole to warrant a partial stay. 5 Having regard to the matters which have been agitated in this hearing I consider that there should be a stay as to $40,000 of the judgment and I order accordingly. 6 I reserve the question of costs. **********