Advance Earthmovers Pty Ltd v Fubew Pty Ltd [2009] NSWCA 337

New South Wales Court of Appeal

CITATION: Advance Earthmovers Pty Ltd v Fubew Pty Ltd [2009] NSWCA 337

HEARING DATE(S): 27 August 2009

JUDGMENT DATE: 20 October 2009

JUDGMENT OF: Tobias JA at [1]; Young JA at [2]; Sackville AJA at [74]

DECISION: (1) Leave to appeal granted; (2) Applicant to file notice of appeal within 7 days; (3) Appeal allowed; (4) Orders of Delaney DCJ set aside and in lieu thereof order that the respondent's notice of motion to set aside summary judgment be dismissed; (5) Order that the respondent pay the costs below and on appeal, but in respect of the latter, if qualified to receive a certificate under the Suitors' Fund Act 1951.

CATCHWORDS: ADMINISTRATIVE LAW- Administrative tribunals- Consumer, Trader and Tenancy Tribunal ("CTTT")- jurisdiction of courts and CTTT- s 22(3) of the Consumer, Trader and Tenancy Tribunal Act 2001 ("CTTT Act")- limited jurisdiction of courts where same "issue" to be heard in CTTT- whether respondent's claim of overcharging in CTTT is the same "issue" as claim in the District Court under the Building and Construction Industry Security of Payment Act 1999 ("SOPA"). CONTRACTS- building, engineering and related contracts- remuneration- jurisdiction of courts and CTTT- whether respondent's claim in CTTT is the same "issue" as claim in the District Court- s 22(3) of the CTTT Act. CONTRACTS- building, engineering and related contracts- remuneration- interpretation and application of s 7(2)(b) of the SOPA- whether right of a contractor to proceed under s 15(2)(a)(i) to obtain summary judgment for the amount claimed abrogated- whether corporation can contract for "residential building work" as defined in s 7(2)(b) of the SOPA- whether corporation can reside. WORDS & PHRASES- "Issue" in s 22(3) of the CTTT Act.