Page v Home Team Constructions Pty Ltd [2008] NSWSC 613

New South Wales Supreme Court

CITATION : Page v Home Team Constructions Pty Ltd [2008] NSWSC 613

HEARING DATE(S) : 23 May 2008

JUDGMENT DATE : 19 June 2008

JURISDICTION : Common Law Division

JUDGMENT OF : Hislop J

DECISION : (1) Appeal dismissed. (2) The plaintiffs (owners) are to pay the defendant's (builder's) costs of the appeal.

LEGISLATION CITED : Local Courts Act, 1982

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Mifsud v Campbell (1991) 21 NSWLR 725 CASES CITED : Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Trimis v Mina [1999] NSWCA 140 Pavey & Matthews Pty Ltd v Paul (1986) 162 CLR 221

Steven Page (1st Plaintiff) PARTIES : Jacqueline Page (2nd Plaintiff) Home Team Constructions Pty Ltd (Defendant)

FILE NUMBER(S) : SC 10200/08

COUNSEL : S.A. Benson (Plaintiffs) H.W.M. Stitt (Defendant)

SOLICITORS : Michael Whittemore (Plaintiffs) Bruce Stewart Dimarco (Defendant)

LOWER COURT JURISDICTION : Local Court

LOWER COURT FILE NUMBER(S) : 3219/2006

LOWER COURT JUDICIAL OFFICER : Magistrate R. Williams

LOWER COURT DATE OF DECISION : 19 December 2007

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HISLOP J

Thursday 19 June 2006

10200/08 STEVEN PAGE & ANOR v HOME TEAM CONSTRUCTIONS PTY LTD

JUDGMENT 1 HIS HONOUR: Mr and Mrs Page ("the owners") contracted, in writing, with Home Team Constructions Pty Ltd ("the builder") for the erection of a dwelling house at 35 Austin Avenue, North Curl Curl. 2 A dispute arose between the parties as to the builder's entitlement to certain claims invoiced by it in respect of what may be generally termed extras. The builder took action in the Downing Centre Local Court to recover the moneys claimed. It was successful in the proceedings in respect of each of the items claimed and was awarded $49,234.06 together with interest. 3 The owners have appealed to this Court from the decision of the magistrate. The scope of the appeal is very limited. A party who is dissatisfied with the judgment may appeal against the judgment "but only as being erroneous in point of law" (Local Courts Act, 1982, s 73(1)). A party may also appeal on a question of mixed law and fact but only with the leave of the court (s 74(1)). There is no appeal on a question of fact, as such, with the consequence that a party cannot appeal a judgment on a pure question of fact even if the determination of fact is erroneous or perverse - Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139. No application for leave pursuant to s 74(1) was made on the appeal. 4 The items the subject of the appeal were a variation of the on-ground floor slab, brick fence, door 6 and provisional cost items for engineering, scaffolding and on-site water detention and stormwater systems. 5 The amended summons pursuant to which the appeal is brought is cast in wide terms. Ultimately four alleged points of law were identified by the owners' counsel and were relied upon in the appeal. 6 The points of law were: