Field v Dettman [2013] NSWCA 147

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Field v Dettman [2013] NSWCA 147 Hearing dates: 24 April 2013 Decision date: 03 June 2013 Before: Beazley P at [1]; Meagher JA at [2]; Preston CJ of LEC at [3]. Decision: 1. The Further Amended Summons is dismissed. 2. The plaintiffs are to pay the defendant's costs of the proceedings. [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: JUDICIAL REVIEW - determination of District Court dismissing appeal from decision of Consumer, Trader and Tenancy Tribunal on questions of law - application for certiorari to quash determination - restitution claim to recover monies paid to contractor contrary to the Home Building Act - whether District Court failed to find payment made under mistake as to requirement for contract to be in writing - such question not a ground of appeal in District Court - no error of law in failing to determine a question not in issue on appeal - whether Home Building Act precluded payee raising any "defence" to restitution claim - question not arising as entitlement to restitution not established - whether Home Building Act gives right of action to recover money paid to a contractor not entitled to receive money - no statutory right of action given Legislation Cited: Consumer, Trader and Tenancy Tribunal Act 2001 s 67 Home Building Act 1989 ss 4(1), 7(1), 10, 18B, 48I(1), 92(1),(2), 94(1A) Supreme Court Act 1970 ss 48(2), 69 Cases Cited: Alexander v Gregoriou [2010] NSWDC 15 Byrne v Australian Airlines Ltd (1995) 185 CLR 410 David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48; 175 CLR 353 Hills Industries Ltd v Australian Financial Services and Leasing Pty Ltd [2012] NSWCA 380; (2012) 295 ALR 147 Miller v Miller [2011] HCA 9; (2011) 242 CLR 446 O'Connor v S P Bray Pty Ltd (1937) 56 CLR 464 Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397 X (Minors) v Bedfordshire County Council [1995] 2 AC 633 Category: Principal judgment Parties: Jason Field (First Appellant) Kim Field (Second Appellant) Representation: Mr F Corsaro SC with Mr P J Bambagiotti (Appellants) Mr G Jensen (Barrister) (Respondent) Thomas Mitchell Solicitors (Appellants) Gillis Delaney Lawyers (Respondent) File Number(s): 249898 of 2012 Publication restriction: No Decision under appeal Citation: [2011] NSWDC 125 Date of Decision: 2011-08-31 00:00:00 Before: Sidis DCJ File Number(s): 00405209 of 2010