GRYGIELv BAINE & ORS [2004] NSWCA 377

New South Wales Court of Appeal

CITATION : GRYGIELv BAINE & ORS [2004] NSWCA 377 HEARING DATE(S) : 11 October 2004 JUDGMENT DATE : 12 October 2004

JUDGMENT OF : Mason P at 1 DECISION : Application dismissed with costs

CATCHWORDS : Review of Registrar's decision - whether appeal incompetent - whether relevant decision was interlocutory - appeal from decision rejecting appeal to Supreme Court from Consumer, Trader & Tenancy Tribunal rejecting pleading amendment - whether appeal concerns a value of $100,000 or more - practice when competency challenged and appellant wishes to seek leave in the alternative. (D) PARTIES : Christopher Andrew GRYGIEL Anthony BAINE & ORS FILE NUMBER(S) : CA 40373/04 Claimant: J Simpkins SC COUNSEL : 1 & 3 Opponents: R Colquhoun 2 Opponent: E M Davies Claimant: The Builders Lawyer SOLICITORS : 1 & 3 Opponents: Massey Bailey 2 Opponent: Pricewaterhouse Coopers Legal

LOWER COURT Supreme Court - Common Law Division JURISDICTION : LOWER COURT SC 30088/03 FILE NUMBER(S) : LOWER COURT Master Malpass JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40373/04

MASON P

Tuesday 12 October 2004 Christopher Andrew GRYGIEL v Anthony BAINE & Ors JUDGMENT

1 HIS HONOUR: This is a motion to review a decision of Registrar Schell dismissing an appeal as incompetent. The appeal was filed by the claimant Mr Grygiel, who is a builder. The appeal was from the order of Master Malpass dismissing with costs the claimant's summons filed in the Common Law Division Administrative Law List. 2 The defendants to the summons that was dismissed by the Master were: - first defendant, the husband of the second defendant, a member of the firm of Carroll & O'Dea, solicitors, and an alleged party to the building contract with the claimant; - second defendant, the owner of the Vaucluse house at which building work was performed and an alleged party to the building contract. The first and second defendants together are the first opponents in the present motion and shall hereafter be referred to as the proprietors; - third defendant, Albion Design and Construction Pty Limited, the second opponent in the present motion. This company (hereafter referred to as the architect) was involved in design work for the Vaucluse job; - fourth defendant, Blakemore Electrical Services Pty Limited: this company is not involved in the motion; -- fifth defendant, the members of the firm of Carroll & O'Dea, solicitors (hereafter the solicitors). These persons are collectively the third opponent in the motion; - sixth defendant, the Consumer, Trader and Tenancy Tribunal (hereafter the Tribunal). 3 According to the allegations in the further amended statement of claim that the claimant wishes to file in the Tribunal, the claimant did building work for the proprietors on a "do and charge" basis and pursuant to an oral contract. A building dispute left the claimant claiming unpaid progress payments and damages as on a repudiation of contract. The proprietors were claiming that the work was defective, in consequence of which they had overpaid the claimant and/or had a claim for damages against him. 4 The claimant made a monetary claim in the Tribunal against the proprietors. He sought to recover $39,739, either pursuant to a contractually-based progress claim or as reasonable remuneration. By their response or defence in the Tribunal the proprietors invoked s92 of the Home Building Act 1989 (that requires home warranty insurance to be obtained), pleaded a defence under s 10 of that Act based on the absence of a written contract, asserted a right to set off by reason of incomplete or defective works and otherwise denied the claimed entitlement. By a cross claim filed in the Tribunal the proprietors alleged that the claimant or alternatively Eastermead Pty Limited had entered into the building contract, had negligently, fraudulently or misleadingly misrepresented certain matters and had breached various terms of the building contract. Eastermead Pty Limited is owned and controlled by the claimant. The proprietors' cross claim is supported by a Scott Schedule claiming $121,752 made up by a claim for $34,315 for defects and $87,437 for overcharging. 5 The claimant applied for various orders in the Tribunal. The hearing of that application took three days and the summons to the Common Law Division sought to challenge the Tribunal's refusal to grant the orders sought. The orders sought in the Tribunal that are still pressed were as follows. 6 First, the claimant sought to join Eastermead Pty Limited as a co-applicant so that the various claims by the claimant either in contract or the claims hereafter referred to could be pleaded in the alternative by the company. The application was prompted by the proprietors having joined the company in the alternative to the claimant in the above-mentioned cross-claim in the Tribunal. The claimant maintains that he is the proper contracting party. According to pars 10 to 12 of the Master's reasons the proprietors now share this view. Why the matter is still being pressed is completely unclear. 7 Secondly, the claimant sought to bring additional claims in the Tribunal against the architect and the solicitors. These were the claims which the Tribunal held were outside its jurisdiction. 8 The architect had provided drawings to the proprietors. Its retainer by them was terminated before the claimant was engaged to do the building work. The claimant nevertheless claims that the architect owed him a duty of care that was breached. Alternatively, he seeks contribution under the Law Reform (Miscellaneous Provisions) Act 1946. 9 As indicated above, the claimant's failure to have taken out home owners warranty insurance is pleaded by the proprietors as a defence to the claimant's claim in the Tribunal. The claimant asserts that he did not take out insurance because of advice given to him by the solicitors either directly or via the proprietors. I infer that the agent who allegedly gave this advice was the first respondent, Mr Baine. The Tribunal refused leave to join Eastermead Pty Limited for a variety of reasons including findings of fact to the effect that the company was not a party to the building contract. It is therefore far from clear how a challenge to this ruling could possibly attract the Supreme Court's appellate jurisdiction which, as indicated below, is limited to questions with respect to matters of law. 10 The applications to join the architects and the solicitors were rejected by the Tribunal on jurisdictional grounds. Its only relevant jurisdiction arises under the Home Building Act and the Consumer Claims Act 1998. The Tribunal followed earlier Supreme Court decisions in holding that for jurisdiction in a matter with the monetary sum involved the claim must be in respect of physical construction or alteration of a dwelling. 11 Section 67 of the Consumer Trader and Tenancy Tribunal Act 2001 provides: