Sayed & Anor v Suncorp Metway Insurance & Ors [2002] NSWSC 1003

New South Wales Supreme Court

CITATION : Sayed & Anor v Suncorp Metway Insurance & Ors [2002] NSWSC 1003 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 11877 of 2002 HEARING DATE(S) : 15 October 2002 JUDGMENT DATE : 28 October 2002

Nazih Sayed & Fatme Sayed (Plaintiffs) v PARTIES : Suncorp Metway Insurance Limited (First Defendant) Bravo Developments Pty Ltd (Second Defendant) Maria Romeo & Peter Kountouris (Third Defendant) Fair Trading Tribunal of NSW (Fourth Defendant) JUDGMENT OF : Master Malpass

LOWER COURT Fair Trading Tribunal of New South Wales JURISDICTION : LOWER COURT HB 01/74531 FILE NUMBER(S) : LOWER COURT Mr P H Molony Member JUDICIAL OFFICER :

Mr Brian Morris (Plaintiffs) COUNSEL : E. Olsson (First Defendant) N/A (Second, Third and Fourth Defendants) Leslie E Abboud (Plaintiffs) SOLICITORS : Herbert Geer & Rundle (First Defendant) N/A (Second, Third and Fourth Defendants) CATCHWORDS : Appeal from Tribunal - findings said to be against the evidence and the weight of the evidence - no error of law. LEGISLATION CITED : N/A CASES CITED : N/A DECISION : See Paragraph 14.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Master Malpass

Monday 28 October 2002

11877 of 2002 Nazih Sayed & Fatme Sayed v Suncorp Metway Insurance Limited & Ors

JUDGMENT 1 Master: These proceedings were commenced by Summons filed on 5 July 2002. The process brings an appeal from a decision of the Fair Trading Tribunal (the Tribunal). The decision was made by a Tribunal Member (Mr P Molony) on 29 May 2002. Detailed reasons for the decision have been given. 2 The plaintiffs are the owners of a residential property known as 44 Greenacre Road Greenacre (the property). The second defendant is a builder. The third defendants are directors of the second defendant. The plaintiffs and the second defendant entered into a contract for the construction of a dwelling on the property. Home owners warranty insurance was taken out with the first defendant. 3 During a late stage of construction, disputes arose between the plaintiffs and the second defendant. Without seeking to be exhaustive, it suffices to mention a few of the events that came to pass. There were inter alia discussions in which Mr Sayed (on behalf of the plaintiffs) evinced an intention to Mr Kountouris (on behalf of the second defendant) to take over the job and to engage other contractors (including a discussion had on 13 July 2001). The second defendant ceased building work. 4 The plaintiffs made a claim under the insurance policy. The first defendant declined indemnity on the following basis that the plaintiffs:- "Wrongfully repudiated the building contract in respect of which the claim was lodged and as such, there has been no event giving rise to indemnity under the policy." 5 The plaintiffs then brought an application in the Tribunal against the first defendant. The claim for indemnification being founded on alleged breaches of statutory warranties. The second and third defendants were also parties to the application. The second defendant brought a Cross-Claim in the proceedings seeking damages. 6 By agreement between the parties, the Tribunal was asked to determine a preliminary issue. It was expressed in the following terms:- "Whether The Building Contract Between The Applicants And The Second Respondent Was Determined Before Completion, Either As A Result Of The Applicants' Or The Respondent's Repudiation, Or By Agreement Between Them." 7 A hearing took place. It occupied about five days. Both Mr Sayed and Mr Kountouris gave evidence. Their respective evidence threw up conflict. Findings were made as to credibility. The findings were adverse to the credibility of Mr Sayed. The evidence of Mr Kountouris was preferred. The Tribunal found that the plaintiffs had repudiated the contract on 13 July 2001 and that the repudiation had been accepted by the second defendant. It did not accept that the second defendant had abandoned the works. 8 The appeal was heard by this Court on 15 October 2002. Only the plaintiffs and the first defendant were represented at the hearing. The plaintiffs sought to challenge the findings made as to repudiation and acceptance. There is but a narrow avenue of appeal open to the plaintiffs. It is restricted to error of law. 9 There are difficulties confronting the plaintiffs. The decision reached by the Tribunal was founded on the findings made as to credibility. There was evidence before the Tribunal upon which the findings could be based. 10 The plaintiffs have relied on written submissions. These were supplemented by oral argument. Largely, the submissions look to what was said in pleadings and particulars together with evidence given by Mr Kountouris. It was said that in the light of this material, the findings were against the evidence and the weight of the evidence. 11 For the purposes of deciding this appeal, it is unnecessary to delve deeply into the voluminous material. The pleadings, the evidence and the reasoning of the Tribunal may be found in the annexures to an affidavit sworn by Mr Abboud (the solicitor for the plaintiffs). Also, it is unnecessary to embark on extensive analysis of the evidence. 12 This is not a case where there was no evidence to support the findings that were made. There was evidence which could be seen as a repudiation by the plaintiffs (including conduct that took place on 13 July 2001). There was evidence which could be seen as a subsequent acceptance of that repudiation by the second defendant. In my view, the findings were reasonably open on the material before the Tribunal. I consider that the plaintiffs have failed to identify any error of law justifying the disturbing of the finding. 13 The plaintiffs bear the onus of demonstrating an entitlement to relief. In my view, they have failed to discharge that onus. 14 The Summons is dismissed. The plaintiffs are to pay the costs of the Summons. **********