SMITH & ANOR v COLLINGS HOMES PTY LTD & ANOR [2004] NSWCA 75

New South Wales Court of Appeal

CITATION : SMITH & ANOR v COLLINGS HOMES PTY LTD & ANOR [2004] NSWCA 75 HEARING DATE(S) : 5 March 2004 JUDGMENT DATE : 5 March 2004

JUDGMENT OF : Mason P at 1; Handley JA at 60; Campbell J at 63 DECISION : Appeal allowed with costs.

CATCHWORDS : BUILDING CONTRACT - breach - FAIR TRADING ACT 1987 - misleading and deceptive conduct - CONSUMER, TRADER AND TENANCY ACT 2001 - judicial review - appellate jurisdiction - "a question with respect to a matter of law" - whether denial of procedural fairness. (ND) LEGISLATION CITED : Fair Trading Act 1987 Consumer, Trader and Tenancy Act 2001 PARTIES : Greg SMITH & Anor v COLLINGS HOMES PTY LTD & Anor FILE NUMBER(S) : CA 40596/03 COUNSEL : Appellants: S Higgins Respondents: P R Glissan SOLICITORS : Appellants: Antonys Lawyers Respondents: Mervyn J Cathers & Co

LOWER COURT Supreme Court JURISDICTION : LOWER COURT SC 30075/02 FILE NUMBER(S) : LOWER COURT Master Malpass JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40596/03

MASON P HANDLEY JA CAMPBELL J

Friday 5 March 2004 Greg SMITH & Anor v COLLINGS HOMES PTY LTD & Anor JUDGMENT

1 MASON P: In late 2000, the claimants wanted to build a new home on their vacant block of land in Kellyville. They wanted the home to be completed by November 2001 so they could celebrate a significant milestone in their daughter's life. They approached the first opponent, whose advertisement they had seen in the summer edition of the New Home Buyer magazine. Their negotiations were with the second opponent, who acted as the representative of the first opponent and was held out by the first opponent as having the capacity to negotiate. The negotiations culminated in a written contract that the claimants entered into with the first opponent on 26 December 2000. The claimants paid a deposit of $5,000 on that day, and a further sum of $5,000 on 28 May 2001. 2 On 10 October 2001, the claimants commenced proceedings against the opponents in the former Fair Trading Tribunal, alleging that the second opponent's precontractual representations were misleading and deceptive. They also sued in contract alleging breaches of the written contract. Their claim was for the return of the $10,000 deposit, plus rental they were obliged to pay as a result of the delays of the first opponent. 3 The nub of the written contract was that the first opponent would perform various services in relation to the obtaining of council approval and procuring a suitable builder to erect the residence. The contractual lump sum was $265,000. The parties negotiated an extra $3,000 for glass panels to a rumpus room and an extra $10,000 for landscaping, irrigation system, turf and driveway. 4 The claimants alleged that the second opponent made representations about the terms of the contract and the time within which key steps would be taken. 5 Plans were drafted, apparently by an employee of the first opponent. They were lodged with the Baulkham Hills Shire Council on 30 March 2001. For various reasons, the plans were not, however, approved until June. There were complaints by the claimants to the second opponent and requests to hurry things along. 6 By July 2001, a builder had not been obtained or agreed upon. At that stage, the second opponent recommended a Mr Spolletti. The claimants checked out his references and were not happy. They requested the second opponent find another builder. There were further delays. 7 On 31 August 2001, Mrs Smith rang the second opponent to check on progress in finding another builder. The second opponent said he was working on it. Later that day, Mr Smith rang him to say that the claimants were not going ahead because things were taking too long. The claimants demanded the refund of the $10,000 deposit, apparently at the time offering to pay the cost of the plans. 8 As indicated, the claimants commenced proceedings in the Fair Trading Tribunal on 10 October 2001. Because of transitional provisions in the Consumer, Trader and Tenancy Tribunal Act 2001 (the CTTT Act), the claim came to be heard and determined in the Consumer, Trader and Tenancy Tribunal, hereafter the Tribunal. Section 28 of the CTTT Act provides: 28 Procedure of Tribunal generally