New South Wales Supreme Court CITATION : Giblin & Anor v Jammal & Anor [2003] NSWSC 604 HEARING DATE(S) : 30 June 2003 JUDGMENT DATE : 3 July 2003 JURISDICTION: Common Law Division Administrative Law List JUDGMENT OF : Master Malpass DECISION : The appeal is allowed and I set aside the order made by the Tribunal on 16 October 2002. If an order has been made as to costs, it is also set aside. I remit this decision to the Tribunal and order a rehearing of the proceedings by it. The first defendant is to pay the costs of these proceedings. If he is so entitled, he is to have a certificate under the Suitors' Fund Act 1951. The Exhibits may be returned. CATCHWORDS : Construction of contract - decision by tribunal on a question with respect to a matter of law. LEGISLATION CITED : Consumer, Trader and Tenancy Tribunal Act 2001, s 67. Suitors' Fund Act 1951. CASES CITED : N/A Alan Giblin and Ester Giblin (Plaintiffs) PARTIES : v Samir Jammal (First Defendant) Consumer, Trader & Tenancy Tribunal (Second Defendant) FILE NUMBER(S) : SC 30109 of 2002 Mr M Ashhurst (Plaintiffs) COUNSEL : Mr G A Sirtes (First Defendant) N/A (Second Defendant) Somerville & Co Solicitors (Plaintiffs) SOLICITORS : Watson Stafford (First Defendant) I V Knight - Crown Solicitor - Submitting Appearance (Second Defendant) LOWER COURT Consumer, Trader & Tenancy Tribunal JURISDICTION : LOWER COURT BU 99/77207 and BSY 97/70540 FILE NUMBER(S) : LOWER COURT G Durie, Senior Member JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST Master Malpass Thursday 3 July 2003 30109 of 2002 Alan Giblin & Anor v Samir Jammal & Anor JUDGMENT 1 MASTER: The first defendant is a builder. The plaintiffs are the owners of a property at Cherrybrook. These parties purported to enter into a building contract for the construction of a dwelling on the property. It is in the form of "The Plain English Home Building Contract". It purports to be a lump sum building contract (the contract price is specified to be $255,500). 2 In 1997, the first defendant brought a claim in the Building Disputes Tribunal. It was a claim for the sum of $20,000 as an agreed fee for his supervision of the building works. The claim was disputed. The disputes between the parties have given rise to a long and unhappy history. 3 The claim was heard and determined. There was a successful appeal brought by the plaintiffs against the determination. The claim was remitted back for hearing. By that time, the Fair Trading Tribunal had replaced the Building Disputes Tribunal. 4 The plaintiffs brought a cross-claim. It was a claim for damages in respect of alleged breaches of the building contract. 5 By reason of further jurisdictional changes, the claim and cross-claim were heard by the Consumer, Trader and Tenancy Tribunal (the Tribunal). The plaintiff's were ordered to pay the sum of $14,788.75. 6 The plaintiffs now appeal against that decision. The appeal is brought pursuant to s 67 of the Consumer, Trader and Tenancy Tribunal Act 2001 (the Act). The appeal is restricted to a decision by the Tribunal on a question with respect to a matter of law. 7 For present purposes, it is only necessary to consider the principal ground of appeal relied on by the plaintiffs. It is common ground that if the plaintiffs are successful on that question, there is no need to consider the other grounds of the appeal and a rehearing of the proceedings is required. 8 It appears that the bitterly fought proceedings in the Tribunal occupied some ten days. A formidable body of oral evidence and documentation came before the Tribunal (including much oral evidence concerning the building contract and its terms). 9 The case propounded by the first defendant before the Tribunal saw him looking to documentation and oral evidence. He tendered certain documents which came to be admitted as Exhibit A2. It comprised a copy quotation for the total price ($255,500), a copy of The Plain English Home Building Contract (which was signed by the parties) and two other pages. The last of the two pages was headed "Owner's Record of Payments" and on the bottom half of that page under the heading "NOTES" appeared in handwriting the following:- "*IF BY CHANCE THE OWNERS OR BUILDER RECEIVES A QUOTE WITH A LOWER PRICE THAN THAT STATED ON ORIGINAL QUOTES LATER THAN THIS DAY AND THE OWNERS AGREE TO THAT PRICE, THE DIFFERENCE MUST BE DEDUCTED OR ADDED TO THE CONTRACT PRICE ITEM C CLAUSE (4) EXCLUDING BRICKWORK AND CONCRETING AND SUPERVISION $20,000." 10 The written Reasons for Decision of the Tribunal are before the court. It refers to the handwritten note as the handwritten clause. The principal issue argued before the Tribunal was treated as being a question of construction of documents. It was faced with competing contentions. The task was identified as being one of ascertaining the true intentions of the parties from the documents used by them and to give effect to those intentions (paragraph 21). 11 The thrust of the case advanced by the first defendant was that his role was one of supervision with the plaintiffs being owner-builders. He claimed that he was to be paid a fixed price of $20,000 for those services. He placed emphasis on the handwritten clause. In submissions, it was put that he was saying in effect that "SUPERVISION $20,000." as found in the clause was the only relevant material contained in the documentation. 12 The stance taken by the plaintiffs was that the parties had entered into a lump sum contract for the sum of $255,500. It was said that the handwritten clause enabled them to substitute other tradesmen and reduce the contract price. It was also put that it quantified the first defendant's profit under the building contract. 13 It may be that the first defendant's case should have been formulated differently and perhaps prosecuted in another forum. However, for present purposes, I put those considerations aside. 14 Whilst doubt may be entertained as to what was precisely decided by it, the Tribunal concluded that the real intention of the parties was that the first defendant was lending his name as a builder to enable the plaintiffs to obtain finance for the building works. This led it to observe that whilst the contract had some of the traditional indicia of a fixed price contract, it was in fact one for supervision. In reaching that result, it appears to have had regard to evidence given by the first defendant (which was preferred to that of the plaintiffs) and the handwritten clause (which does not form part of the building contract itself). The construction that was reached appears to have ignored the entirety of the executed building contract itself and was the product of misdirection as to the use of parol evidence. 15 It is not in dispute that a decision on questions of construction of documents gives rise to a decision on a question with respect to a matter of law. 16 There are well established principles concerning the construction of documents and the use of evidence. The court has been referred to a number of decided cases. These may be found in the written submissions. For present purposes, it is unnecessary to refer to any of them. The relevant principles are not in dispute. 17 There have been clear and obvious errors which fall within the ambit of s 67 of the Act. The errors justify the disturbing of the findings made as to the contract. 18 In the circumstances, the appeal is allowed and I set aside the order made by the Tribunal on 16 October 2002. If an order has been made as to costs, it is also set aside. I remit this decision to the Tribunal and order a rehearing of the proceedings by it. 19 The first defendant is to pay the costs of these proceedings. If he is so entitled, he is to have a certificate under the Suitors' Fund Act 1951. The Exhibits may be returned. ********** Last Modified: 07/04/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.