Edyp & Ors v Brazbuild Pty Ltd [2011] NSWCA 218

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Edyp & Ors v Brazbuild Pty Ltd [2011] NSWCA 218 Hearing dates: 19 May 2011 Decision date: 29 July 2011 Before: Allsop P at [1], Giles JA at [59], Basten JA at [144] Decision: (1) Amended summons filed on 21 December 2010 dismissed. (2) Applicants pay the respondent's costs including the costs of the summons seeking leave to appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: APPEAL - Jurisdiction of District Court on appeal from Consumer Trader and Tenancy Tribunal - claim in the Tribunal against three defendants as parties to a contract - order against one defendant only - appeal to the District Court under s 67(1) Consumer Trader and Tenancy Tribunal Act 2001 (NSW) - District Court found that the proceedings in Tribunal had been on the basis that all three defendants were parties to contract - whether the Tribunal had decided a question with respect to a matter of law - (per Allsop P, Giles JA) there was an implicit decision that the Tribunal had fully exercised its jurisdiction - this was a decision on a question with respect to a matter of law - (per Basten JA) there had been no question in Tribunal as to disparate liability of defendants - there was no decision of a question with respect to a matter of law - District Court made an order against all three defendants - whether the District Court exceeded its jurisdiction in finding that all three defendants were parties to contract - (per Allsop P, Giles JA; Basten JA not considering) the District Court engaged in fact-finding beyond its jurisdiction - but the fact-finding was not material to the order it made. WORDS AND PHRASES - "decision", "question": Consumer Trader and Tenancy Tribunal Act 2001, s 67(1). Legislation Cited: Consumer Trader and Tenancy Tribunal Act 2001 (NSW) Home Building Act 1989 (NSW) Cases Cited: B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187; (2009) 74 NSWLR 481; Bahadori v Permanent Mortgages Pty Ltd [2008] NSWCA 150; (2008) 72 NSWLR 44; Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86; Chapman v Taylor [2005] NSWCA 11; (2005) Aust Contract Reports 90-206; The Craftsmen Restoration & Renovations Pty Ltd v Boland [2011] NSWCA 147; Custom Credit Corporation Ltd v Commercial Tribunal (NSW) (1993) 32 NSWLR 489; Dayeian v Davidson [2010] NSWCA 42; (2010) 76 NSWLR 512; Goodwin v Commissioner of Police [2010] NSWCA 239; Grygiel v Baine [2005] NSWCA 218; Health Care Complaints Commission v Karalasingham [2007] NSWCA 267; HIA Insurance Services Pty Ltd v Kostas [2009] NSWCA 292; Kalokerinos v HIA Insurance Services Pty Ltd [2004] NSWCA 312; Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; 239 CLR 531; Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390; Metropolitan Water Sewerage and Drainage Board v Histon [1982] 2 NSWLR 720; Muldoon v Church of England [2011] NSWCA 46; Scicluna v New South Wales Land and Housing Corporation [2008] NSWCA 277; (2008) 72 NSWLR 674; Smith v Collings Homes Pty Ltd [2004] NSWCA 75; Sullivan v St George Community Housing Ltd [2010] NSWCA 248; Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300; (2007) 71 NSWLR 230; Wal-Mart Stores Inc v Dukes 131 S Ct 2541; 564 US...; 79 USLW 4527 (2011). Category: Principal judgment Parties: Ruban Edyp - First Appellant Sonja Baumung - Second Appellant R & S Healthy Living Pty Ltd - Third Appellant Brazbuild Pty Ltd - Respondent Representation: M Condon - Appellants J J Garnsey QC & D J Hand - Respondent McLaughlin & Riordan - Appellants Coastal Law & Conveyancing, Coffs Harbour - Respondent File Number(s): CA 2009/32769 Decision under appeal Date of Decision: 2009-12-02 00:00:00 Before: Balla DCJ File Number(s): DC 2324/09