Brimelow v Sharpe [2012] NSWCA 345

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Brimelow v Sharpe [2012] NSWCA 345 Hearing dates: 2 October 2012 Decision date: 25 October 2012 Before: Macfarlan JA at [1]; Meagher JA at [37]; Tobias AJA at [48] Decision: The plaintiff's summons is dismissed with costs. [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: ADMINISTRATIVE LAW - judicial review - appeal to District Court from Consumer, Trader and Tenancy Tribunal ('CTTT') - application for relief by way of certiorari under s 69 of Supreme Court Act 1970 - whether District Court made jurisdictional error or error of law on face of record - whether District Court entitled to find that CTTT decision on question of law justifiable by different legal analysis to that adopted by CTTT - whether District Court should have remitted proceedings to CTTT for redetermination - whether District Court erred in making impermissible factual findings - whether discretion to refuse grant of certiorari relief

CONTRACT - breach of contract - agreement to carry out construction and renovation works at family home - whether installation of solar panels and water tank formed part of contract - whether inclusion of items within plans conferred obligation to install them despite their omission from builder's quotation - whether alleged oral conversation between parties was capable of supporting appellant's contention Legislation Cited: Consumer, Trader and Tenancy Tribunal Act 2001 District Court Act 1973 Home Building Act 1989 Supreme Court Act 1970 Cases Cited: Edyp v Brazbuild Pty Ltd [2011] NSWCA 218 Fitzgerald v Director of Public Prosecutions (1991) 24 NSWLR 45 Garde v Dowd [2011] NSWCA 115 Muldoon v Church of England Children's Homes Burwood [2011] NSWCA 46; 80 NSWLR 282 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390 Mann v Medical Practitioners Board of Victoria [2004] VSCA 148; 21 VAR 429 Murlan Consulting Pty Ltd v Ku-ring-gai Municipal Council [2009] NSWCA 300; 170 LGER 162 R v Commonwealth Court of Conciliation & Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 R v Williams; ex parte Lewis [1992] 1 Qd R 643 Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; 209 CLR 372 Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 Reimers v Health Care Complaints Commission [2012] NSWCA 317 Roach v B & W Steel Pty Ltd (1991) 23 NSWLR 110 Smith v Collings Homes Pty Ltd [2004] NSWCA 75 Solution 6 Holdings Ltd v Industrial Relations Commission of NSW [2004] NSWCA 200; 60 NSWLR 558 Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300; 71 NSWLR 230 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 81 ALJR 1190 Category: Principal judgment Parties: Vicki Brimelow (Applicant) Gregory Sharpe (Respondent) Representation: Counsel: F Corsaro SC (Applicant) F Salama (Respondent) Solicitors: Thomas Mitchell Solicitors (Applicant) Moray & Agnew (Respondent) File Number(s): CA 2011/417467 Decision under appeal Citation: Vicki Brimelow v Gregory Sharpe Date of Decision: 2011-09-02 00:00:00 Before: Sidis DCJ File Number(s): DC 2010/390944