Shal-Houb v Assaf [2002] NSWSC 912

New South Wales Supreme Court

CITATION : Shal-Houb v Assaf [2002] NSWSC 912 CURRENT JURISDICTION: Common Law Division Administrative Law List FILE NUMBER(S) : SC 30074/02 HEARING DATE(S) : 10 October 2002 JUDGMENT DATE : 25 October 2002

Frank Shal-Houb - Plaintiff PARTIES : Nazih Assaf - First Defendant Mona Assaf - Second Defedant Consumer, Trader & Tenancy Tribunal - Third Defendant JUDGMENT OF : Dunford J

COUNSEL : DA Doyle (solicitor) - Plaintiff IE Davidson - 1st & 2nd Defendants The Builders' Lawyer - Plaintiff SOLICITORS : Giles Payne & Co - 1st & 2nd Defendants Submitting Appearance - 3rd Defendant CATCHWORDS : ADMINISTRATIVE LAW APPEAL - application for rehearing - Consumer, Trader and Tenancy Tribunal - STATUTORY CONSTRUCTION - Consumer, Trader and Tenancy Tribunal Act 2001 - transitional provisions. Consumer, Trader and Tenancy Tribunal Act 2001, ss 68 & 89, Sch 6, cll 3, 6 & 8 Fair Trading Tribunal Act 1998, ss 21, 60, 61 & 63 LEGISLATION CITED : Fair Trading Tribunal Regulation 1999, cl 19 Home Building Act 1989, ss 10, 66 & 94 Supreme Court Rules 1970, Pt 51A r 13 DECISION : Appeal fails, Summons dismissed.

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

DUNFORD J

Friday, 25 OCTOBER 2002

30074/02 Frank Shal-Houb v Nazif Assaf & ors

JUDGMENT 1 HIS HONOUR: By Summons filed 4 September 2002, the plaintiff Frank Shal-Houb seeks an order that matter no. BU 2000/3593 in the Consumer Trader and Tenancy Tribunal ("CTTT") be remitted to that Tribunal for rehearing and redetermination of all issues and that execution on the existing orders be stayed until the determination of the appeal. 2 The original order in the proceedings which the plaintiff seeks to have reheard was in fact made by the Fair Trading Tribunal constituted under the Fair Trading Tribunal Act 1998 ("the old Act") which was replaced by the CTTT constituted by the Consumer, Trader And Tenancy Tribunal Act 2001, no. 82 which commenced on 25 February 2002 ("the new Act"). 3 The original application was commenced by the first and second defendants ("the defendants") in the Home Building Division of the Fair Trading Tribunal on 28 March 2000 claiming $280,328.33 for damages arising out of the alleged breach by the plaintiff and his company (Fresh Tec Building and Plumbing Pty Limited), of a contract for the performance of residential building work, together with interest and costs. 4 The application was heard on 3 and 4 October 2000 and 19 February 2001, and Written Submissions closed on 26 February 2001. The Tribunal delivered its decision on 12 March 2001 when it ordered the plaintiff to pay to the defendants $160,853 on or before 12 April 2001 together with costs to be assessed. The Tribunal's reasons extended over 37 pages and are annexed to the affidavit of Darren Charles Kane (the defendants' solicitor) sworn 30 September 2002. 5 On 22 March 2001, the plaintiff applied for a rehearing pursuant to s 63 of the old Act. On 23 July 2001, the Tribunal granted a stay of the orders made on 12 March 2001 pending the determination of the rehearing application, and on 20 August 2001, the application for a rehearing was refused and the stay of proceedings set aside. Meanwhile on 30 May 2001 the defendants registered a certificate of the judgment in the District Court at Sydney and on the same day the defendants caused a bankruptcy notice to be served on the plaintiff. 6 On 20 September, a second application for a rehearing was lodged by the plaintiff and on 17 October 2001 that application was also refused. On 13 November 2001 the defendants caused a bankruptcy petition to be filed against the plaintiff and this was served on 22 November. 7 On 10 December 2001 a third application for a rehearing of the original application was lodged. On 25 February 2002, the new Act commenced and following a number of inquiries, the plaintiff was informed on about 20 March 2002 by a lady who identified herself as calling on behalf of the CTTT that the Tribunal no longer had jurisdiction to review or decide a rehearing application involving more than $25,000. Then on 29 April 2002 he received a letter which read in part as follows: "As discussed clause 24 of the Consumer Trader and Tenancy Regulations states that an application for a rehearing cannot be made unless (a) the amount claimed or in dispute is $500 or more but is not more than $25,000, or (b) no amount of money is claimed or in dispute.