Gary Philip Glover v Brett Flower & Ors [2005] NSWSC 712

New South Wales Supreme Court

CITATION : Gary Philip Glover v Brett Flower & Ors [2005] NSWSC 712

HEARING DATE(S) : 18 July 2005

JUDGMENT DATE : 26 July 2005

Common Law Division JURISDICTION : Administrative Law List

JUDGMENT OF : Associate Justice Malpass at 1

DECISION : The summons is dismissed; the plaintiff is to pay the costs of the summons.

CATCHWORDS : Reasons - alleged non-compliance with statutory provisions - reasonable opportunity to present case - quantum meruit - errors in admissibility of evidence and fact finding.

LEGISLATION CITED : Consumer Trader & Tenancy Tribunal Act 2001

Gary Philip Glover (Plaintiff) Brett Flower (First Defendant) PARTIES : Elle Valdes (Second Defendant) Consumer Trader & Tenancy Tribunal (Third Defendant)

FILE NUMBER(S) : SC 30006/05

In person (Plaintiff) COUNSEL : Mr F Hicks (First & Second Defendant)

N/A (Plaintiff) SOLICITORS : Yates Beaggi Lawyers (First & Second Defendants) I V Knight Crown Solicitor (Third Defendant)

LOWER COURT JURISDICTION : Consumer Trader and Tenancy Tribunal of NSW

LOWER COURT FILE NUMBER(S) : HB 03/13137; HB 03/03840

LOWER COURT JUDICIAL OFFICER : Member D Barnetson

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

Associate Justice Malpass

26 July 2005

30006 of 2005 Gary Philip Glover v Brett Flower & Ors

JUDGMENT 1 His Honour: The plaintiff was a builder. He entered into a contract to perform building work for the first and second defendants (the defendants). Disputes arose between the parties. 2 The defendants brought proceedings in the Consumer Trader & Tenancy Tribunal (the Tribunal) to recover damages for alleged defective work. The plaintiff also brought proceedings to recover money in respect of allegedly unpaid accounts. The proceedings were before the Tribunal during a period running from January 2003 to December 2004. 3 The plaintiff had rendered a final account in the sum of $3,270. Subsequently, he rendered a further account for alleged variations plus interest and costs. 4 The proceedings brought by the plaintiff were determined by the Tribunal on 21 September 2004. His claim for the alleged variations and other matters were rejected. He was awarded the sum of $3,270. 5 Following a reserved decision the defendants were allowed the sum of $33,135.30 and a order for payment of money was made in the sum of $29,865.30. A copy of the reasons for decision and the order was forwarded to the parties by letter dated 13 December 2004. 6 The plaintiff applied for a re-hearing. The application for re-hearing was not granted. 7 The plaintiff has brought a challenge to the decisions in this court. The case that was to be propounded by him was set forth in the further amended summons filed on 5 May 2005. It identifies five grounds challenged. 8 Sections 65 and 67 of the Consumer Trader & Tenancy Tribunal Act 2001 (the Act) provide the only avenues of challenge to a decision of the Tribunal. 9 Section 65 enables a challenge where there has been a lack of jurisdiction or a denial or procedural fairness. Section 67 allows an appeal where the Tribunal decides a question with respect to a matter of law. 10 The plaintiff bears the onus of satisfying the court that there is a ground of challenge which justifies the disturbing of the decision. 11 The avenue of appeal provided by s67 is a narrow one. It has been regarded as not being equivalent to error in point of law. The view seems to be that there is only an appeal where there is a decision concerning a pure question of law. 12 The Act does not provide an avenue of appeal where the complaint is one of error in a finding of fact. 13 During the proceedings before the Tribunal, none of the parties were represented. Both sides were assisted in their presentation by an expert. The plaintiff had Mr Mallinson. The defendants had Mr Bullivant. The proceedings were conducted in a relatively informal manner. 14 Before this court, the plaintiff appeared in person. The defendants were represented by counsel. The parties relied on written submissions supplemented by oral argument. 15 I have carefully read the grounds of appeal. I have carefully read the written submissions. I have carefully listened to the oral argument. In my view, the plaintiff has failed to discharge the onus borne by him. I shall now briefly refer to the various grounds of appeal and what was argued by the plaintiff (there was some discrepancy between the two). 16 The plaintiff complains of a lack of reasons in the dealing with his claim. He looks to s49 of the Act and contends that there has been breach thereof. What has been said by him is misconceived. 17 The Tribunal gave oral reasons for its determination of his claim. The oral reasons may be found in the transcript and are referred to in the written reasons. In my view, what was said was sufficient for the purposes of disposing of his claim. 18 Section 49 of the Act imposes an obligation on the Tribunal to provide a statement of reasons following the making of a request within 14 days of the receiving of notice of the relevant decision. 19 In this case, no request was made within the requisite 14 days. Accordingly, there was no breach on the part of the Tribunal. I should add that the Act does not specify any consequences that are intended to flow from a non-compliance with the provisions of s49. 20 The plaintiff also complains of notices from the Tribunal having been often sent to the wrong address (including the order forwarded on 13 December 2004). Further, he says that in some cases he did not receive such notices. 21 If the plaintiff did suffer any disadvantage by reason of not receiving any of the notices, the same has not been demonstrated. In the circumstances, the failure to send notices to the correct address does not assist the plaintiff in this case. 22 His material presented argument that there had been a breach of s49(1) of the Act. As I understood what was said, it is contended that he was not told by the notice that he had 14 days to request reasons. 23 The notice sent following the making of the order on 21 September 2004 did bear the appropriate notification (as did a subsequent communication). What was sent to him on 13 December 2004 contained the Tribunal's statement of reasons. 24 The plaintiff has identified three potential witnesses that he had wanted to call during the proceedings before the Tribunal (Messrs Taylor, Clarke and Anderson). In a broad sense, a complaint is made that he was not allowed to rely on these witnesses. 25 The substance of this complaint is to the effect that the plaintiff was not given a reasonable opportunity to present his case. A reading of the transcript does not support such a contention. In my view, it was not made out. 26 What is relied on by the plaintiff, does not suggest that Mr Taylor was a person whose evidence would have assisted either the plaintiff or the Tribunal in its deliberations. Mr Clarke did give evidence and the plaintiff was allowed to question him. Mr Anderson was served with a summons. However, he did not attend at the Tribunal and was not, therefore, available to be called by the plaintiff. 27 Another complaint concerns the roles played by experts. The plaintiff challenged the expertise of Mr Bullivant in certain areas. He relied on his own expert (Mr Welham). The plaintiff seems to be unhappy concerning the admission of evidence and findings of fact that were made which concerned what had been done by these experts. 28 Whilst I am not satisfied that there were errors made in respect to the determination of these questions, it should not have to be repeated that any error that was made would not assist the plaintiff in this case. No appeal lies by reason of error in the admissibility of evidence or in a finding of fact. There has to be error in the deciding of a question with respect to a matter of law. 29 The final matter concerns a question of quantum meruit. What was put on this matter, also involved misconception. 30 The case advanced by the plaintiff in his documentation was one founded on contract. On 21 September 2004, for the first time, the question of quantum meruit was raised. Any claim sought to be advanced at that time could be properly rejected by the Tribunal. 31 In any event, it would not have assisted the plaintiff. A claim on that basis cannot be advanced where what is being litigated is the subject of contract between the parties. 32 The challenge to the decision of the Tribunal fails. The summons is dismissed. The plaintiff is to pay the costs of the summons. **********