New South Wales Court of Appeal CITATION: EDWARDS v SYDNEY BUILDING GROUP PTY LTD [2010] NSWCA 185 HEARING DATE(S): 3 August 2010 JUDGMENT DATE: 3 August 2010 JUDGMENT OF: Basten JA at 1 EX TEMPORE JUDGMENT DATE: 3 August 2010 (1) Stand the matter over for a period of 14 days to allow the applicants to consider whether to amend the present summons so as to seek alternative relief and to allow the respondent to consider its position in relation to the competency of the appeal. DECISION: (2) Grant the applicants leave to amend their summons within that period, if so advised. (3) The costs of today will be costs in the proceedings. CATCHWORDS: APPEAL – civil – right to appeal from decision of District Court on an appeal from the Consumer, Trader and Tenancy Tribunal - WORDS & PHRASES – "action" Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), s 67 LEGISLATION CITED: District Court Act 1973 (NSW), ss 44, 127 Supreme Court Act 1970 (NSW), s 69 CATEGORY: Procedural and other rulings Chand v Lifestyle Homes NSW Pty Ltd [2010] NSWCA 135 CASES CITED: Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86 Druett v The Director-General of Community Services [2001] NSWCA 126 David Antony Edwards – First Applicant PARTIES: Leigh Edwards – Second Applicant Sydney Building Group Pty Ltd - Respondent FILE NUMBER(S): CA 2010/56313 COUNSEL: J Gruzman – Applicants D Fitzpatrick (Solicitor) - Respondent SOLICITORS: MasseyBailey Solicitors & Consultants – Applicants Gadens - Respondent LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 3870/09 LOWER COURT JUDICIAL OFFICER: Elkaim DCJ LOWER COURT DATE OF DECISION: 5 February 2010 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 2010/56313 BASTEN JA 3 August 2010 David Antony EDWARDS v SYDNEY BUILDING GROUP PTY LTD Judgment 1 BASTEN JA: This matter commenced as a dispute over residential building works by proceedings brought in 2006 in the Consumer, Trader and Tenancy Tribunal ("the Tribunal"). The applicants in this Court, and in the Tribunal, were the landowners for whom the residential building work was being carried out by the respondent builder. The applicants alleged defective work and the respondent cross-claimed for money due under the contract. 2 In an interim finding made on 31 July 2009, the Tribunal found that the contract was validly terminated by the applicants on 16 February 2007. The consequences of this finding remained (and still remain) to be determined. The builder took an appeal from that decision to the District Court pursuant to s 67 of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) ("the CTTT Act"). An appeal under that section is limited to an appeal from a "decision" of the Tribunal "with respect to a matter of law": s 67(1). 3 In an ex tempore judgment delivered on 5 February 2010, Elkaim DCJ allowed the appeal and set aside the interim findings made by the Tribunal on 31 July 2009. The matter was remitted to the Tribunal for rehearing on the questions of the repudiation and termination of the contract: Orders, 10 February 2010. 4 On 4 March 2010 the applicants gave notice of intention to appeal against the judgment in the District Court. (Although the material date was identified as 5 February 2010, it was in fact the date on which the orders were made, which was some five days later.) In any event, the notice of intention to appeal was within time. So far as appears from the material before this Court, the builder did not respond to that notice. 5 On 16 June 2010 the owners filed a summons seeking leave to appeal. That summons should have been filed by 9 May 2010 and was, accordingly, some five weeks out of time. Whether leave was strictly necessary is a matter which I do not need to determine. Although the proceedings are clearly at an interlocutory stage in the Tribunal, the appeal to the District Court, from which this appeal is sought to be brought, was finally determined by Judge Elkaim. 6 Time is not the only hurdle facing the owners on this application. As I sought to explain in Chand v Lifestyle Homes NSW Pty Ltd [2010] NSWCA 135, in a matter in which no objection to competency had been taken at the time of that judgment, there is a real doubt as to the existence of a right of appeal to this Court from a decision of the District Court in a statutory appeal under the CTTT Act. Section 127 of the District Court Act 1973 (NSW) provides for a general right of appeal from a judgment or order "in an action" in the District Court. That provision reflects the language in which jurisdiction is conferred by s 44 of that Act: see Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86 at 94E (Gleeson CJ, Samuels and Priestley JJA and Hope AJA agreeing); Druett v The Director-General of Community Services [2001] NSWCA 126 (Hodgson JA, Giles JA and Ipp AJA agreeing). 7 The parties did not come to this Court prepared to address the question of whether a right of appeal exists. Accordingly, it would not be appropriate to express a final view about the matter. If a statutory appeal from the Tribunal under the CTTT Act does not constitute an "action" for the purposes of the District Court Act, it would follow that there is no right of appeal from the judgment and orders of the District Court to this Court. 8 There may, nevertheless, be a right of review under s 69 of the Supreme Court Act 1970 (NSW) in proceedings seeking relief in the nature of a prerogative writ. On this view, a party dissatisfied with a judgment in the District Court, seeking to have the orders set aside on the basis of jurisdictional error or error of law on the face of the record, could seek such relief in this Court. For that purpose, error could be revealed by the reasons given by the District Court for its decision. 9 The builder sought to resist the present application for leave to appeal on the ground that the application had been filed out of time. It was also submitted that an extension of time should have been sought by way of notice of motion. 10 In the circumstances I do not think that I should rule upon whether an extension of time should be granted. If the owners cannot succeed on their appeal, because it is otherwise incompetent, an extension of time should be refused. However, if they are minded to pursue relief under s 69 of the Supreme Court Act, there is no fixed period of time within which to bring such proceedings. They would be required to join the District Court as a party to the proceedings. 11 In these circumstances it is sufficient if I make the following directions: (1) Stand the matter over for a period of 14 days to allow the applicants to consider whether to amend the present summons so as to seek alternative relief and to allow the respondent to consider its position in relation to the competency of the appeal. (2) Grant the applicants leave to amend their summons within that period, if so advised. (3) The costs of today will be costs in the proceedings. 12 In standing the matter over for the parties to consider their position, I do not intend to suggest that technical matters should be brought back before the Court otherwise than as necessary. The competency of the appeal need not be determined as a preliminary matter, if there is an arguable alternative basis on which to seek relief. 13 Accordingly, I will not set the matter down for further directions before a Judge of the Court. 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