Proprietors of Strata Scheme 3618 v Costin Roe Consulting [2010] NSWSC 1049

New South Wales Supreme Court

CITATION : Proprietors of Strata Scheme 3618 v Costin Roe Consulting [2010] NSWSC 1049

HEARING DATE(S) : 31 August 2010

JUDGMENT DATE : 17 September 2010

JURISDICTION : Common Law Division Administrative Law List

JUDGMENT OF : Hislop J

DECISION : 1. Appeal dismissed. 2. The plaintiff is to pay the defendant's costs.

CATCHWORDS : ADMINISTRATIVE LAW - residential building work - supervision and co-ordination - quantum meruit.

Home Building Act 1989 LEGISLATION CITED : Local Court Act 2007 Building and Construction Industry Security of Payment Act 1999

CASES CITED : Scicluna v NSW Land and Housing Corporation (2008) 72 NSWLR 674 Brodyn Pty Limited t/as Time Cost and Quality v Davenport (2004) 61 NSWLR 421

PARTIES : The Proprietors of Strata Scheme 3618 (Plaintiff) Costin Roe Consulting Pty Limited (Defendant)

FILE NUMBER(S) : SC 2009/326867

COUNSEL : N. Eastman (Plaintiff) G.M. McGrath (Defendant)

SOLICITORS : Bay Legal (Plaintiff) Mark Vine (Defendant)

LOWER COURT JURISDICTION : Local Court

LOWER COURT FILE NUMBER(S) : 8061/07

LOWER COURT JUDICIAL OFFICER : Magistrate Walsh

LOWER COURT DATE OF DECISION : 7 December 2009

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

HISLOP J

Friday 17 September 2010

2009/326867 THE PROPRIETORS OF STRATA SCHEME 3618 v COSTIN ROE CONSULTING PTY LIMITED

JUDGMENT

Introduction 1 The defendant is a company whose principal business is the provision of consulting engineering services. In 2005/2006 it was engaged by the plaintiff to provide services in relation to a home unit block owned by the plaintiff at Tamarama. The services were in respect of the rectification of a spalled concrete carpark support beam. 2 The work performed pursuant to contract by the defendant was described in memoranda of fees sent by the defendant to the plaintiff and dated 23 March 2006 and 3 August 2006 respectively. 3 The plaintiff refused to pay the defendant's fees. The defendant sued the plaintiff in the Local Court for the fees which totalled $15,643.38. 4 The plaintiff contested the claim. It contended the work, the subject of the defendant's claim, was residential building work within the meaning of s 3 of the Home Building Act 1989 ("the Act") and, accordingly, the Act applied. 5 It was common ground that if the Act applied, the contract which was entered into between the plaintiff and defendant did not comply with the statutory requirements of s 7 of the Act. As a result, s 10(1) applied. 6 Section 10 provided: "(1) A person who contracts to do any residential building work, or any specialist work, and who so contracts: (a) in contravention of section 4 (Unlicensed contracting), or (b) under a contract to which the requirements of section 7 apply that is not in writing or that does not have sufficient description of the work to which it relates (not being a contract entered into in the circumstances described in section 6 (2)), or (c) in contravention of any other provision of this Act or the regulations that is prescribed for the purposes of this paragraph, is not entitled to damages or to enforce any other remedy in respect of a breach of the contract committed by any other party to the contract, and the contract is unenforceable by the person who contracted to do the work. However, the person is liable for damages and subject to any other remedy in respect of a breach of the contract committed by the person…" 7 It was also common ground that, if the Act applied, no valid contract of home warranty insurance had been entered into as required by s 92(1)(a) of the Act. 8 His Honour, Magistrate Walsh, held the Act did not apply or, if it did, that the defendant was entitled to recover the sum claimed on a quantum meruit basis. 9 The plaintiff, by summons filed on 24 December 2009, has appealed from his Honour's decision. The grounds of appeal are: "1. The Local Court, in proceedings no 8061 of 2007, erred in law in holding that the Home Building Act 1989 did not apply to the residential building work the subject of the Defendant's claim in the court below. 2. Further or other grounds to be set out, with or without leave as required, on receipt of written reasons for the orders of a transcript of the oral reasons given for the orders by the court below." 10 The plaintiff, in its submissions to this Court, identified three issues. These are discussed below. The plaintiff accepted its appeal must fail unless it succeeded on each issue. It accepted that it was bound by his Honour's findings of fact.