Love v CTTT & Anor [2007] NSWSC 596

New South Wales Supreme Court

CITATION : Love v CTTT & Anor [2007] NSWSC 596

HEARING DATE(S) : 08/06/2007

JUDGMENT DATE : 14 June 2007

JUDGMENT OF : Associate Justice Malpass

DECISION : The appeal fails. The proceedings are dismissed. The plaintiff is to pay the costs of the proceedings.

CATCHWORDS : Dispute between builder and owner - contractual changes - residential building work - ambit of appeal - lack of supporting evidence - extension of time

LEGISLATION CITED : Consumer, Trader & Tenancy Tribunal Act 2001 (NSW) Home Building Act 1989 (NSW)

CASES CITED : Collings Homes v Head & Ors [2002] NSWSC 1219 Fiatorque Five Dock Pty Limited v Daines & Anor [2007] NSWSC 520

Robert Ian Love PARTIES : Consumer, Trader and Tenency Tribunal Patrick William Joseph Kelly, Anthony Francis Gallagher & Alison Jane Kelly trading as HOBC Constructions

FILE NUMBER(S) : SC 30158/06

COUNSEL : Mr G. Miller QC (Pl) Mr N. J. Owens (2nd Def)

Clinch Neville Long (Pl) SOLICITORS : Crown Solicitor (1st Def) (submitting appearance) Glasheen & Quilty (2nd Def)

LOWER COURT JURISDICTION : Consumer Trader and Tenancy Tribunal of NSW

LOWER COURT FILE NUMBER(S) : HB 05/40677; 05/40707

LOWER COURT JUDICIAL OFFICER : J Deamer

LOWER COURT DATE OF DECISION : 15/08/2006

- 7 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ASSOCIATE JUSTICE MALPASS

14 JUNE 2007

30158/06 Robert Ian Love v Consumer, Trader & Tenancy Tribunal & Anor

JUDGMENT 1 HIS HONOUR: The Plaintiff is the owner of a property in Corunna Road, Stanmore. In or about August 2003, the second defendant was engaged to perform residential building work in respect of it. It seems that a written contract was executed by the parties. 2 The second defendant performed building work until in or about December 2003. The plaintiff was then having problems in paying invoices. A consensus emerged between the parties, which saw a change in the relationship between them. The second defendant ceased the performance of building work. His involvement thereafter was to provide names of sub-contractors who would then be engaged by the plaintiff. Invoices would be rendered by sub-contractors to the second defendant and the second defendant would then render an invoice to the plaintiff. The invoice from the second defendant added a "15% margin". 3 After December 2003, the second defendant rendered one invoice. It was in part a claim for what had been done prior to December 2003 and in part a claim for what had been done thereafter. It was not paid by the plaintiff. 4 The second defendant brought proceedings in the Consumer, Trader and Tenancy Tribunal (the Tribunal). The second defendant claimed the sum of $44,838.68 plus interest. The plaintiff also brought proceedings, claiming damages for defective work (it came to be a claim in excess of $150,000). 5 The proceedings were heard by Tribunal Member Deamer. She delivered her reasons for decision (the reasons) on 15 August 2006. She found for the second defendant on it's application. She rejected the application brought by the plaintiff. 6 The plaintiff had received legal advice. He did not seek to be legally represented during the hearing. As a consequence, both parties were unrepresented. 7 The plaintiff instructed his legal advisers to bring an appeal against the decision made on the second defendant's application. This may have been done on the last day for the bringing of an appeal (12 September 2006). Why action was not earlier taken was left unexplained.