Koutoulas v Strangas & Son Building Contractors Pty Ltd [2013] NSWSC 1353

Supreme Court New South Wales

Medium Neutral Citation: Koutoulas v Strangas & Son Building Contractors Pty Ltd [2013] NSWSC 1353 Hearing dates: 13 September 2013 Decision date: 13 September 2013 Jurisdiction: Common Law Before: Beech-Jones J Decision: Tribunal's orders stayed. Catchwords: CONSUMER TRADER AND TENANCY TRIBUNAL - stay of orders - arguable case of failure to afford procedural fairness. Legislation Cited: - Civil Procedure Act 2005 - Consumer, Trader and Tenancy Tribunal Act 2001 - Consumer, Trader and Tenancy Tribunal Regulation 2009 - Supreme Court Act 1970 Cases Cited: - Koutoulas v Strangas & Son Building Contractors Pty Ltd [2013] NSWSC 1260 Category: Interlocutory applications Parties: George Koutoulas (First Plaintiff) Katrina Koutoulas (Second Plaintiff) Strangas & Son Building Contractors Pty Ltd (First Defendant) Consumer, Trader and Tenancy Tribunal of New South Wales (Second Defendant) Representation: Counsel: R. Jefferis (Plaintiffs) D.P. O'Connor (First Defendant) M. Hill (Second Defendant) Solicitors: Kenneth Harrison (Plaintiffs) Brischetto & Ford (First Defendant) Consumer Trader and Tenancy Tribunal (Third Defendant) File Number(s): 2013/275355

Ex Tempore Judgment 1This is effectively an application to stay an order made in the Consumer, Trader and Tenancy Tribunal (the "Tribunal") on 16 August 2013 that the plaintiffs in this Court, George and Katrina Koutoulas, pay certain amounts by way of interest and costs. 2The background to the application is as follows. Mr and Mrs Koutoulas brought a claim against the defendant, Strangas & Son Building Contractors Pty Ltd ("Strangas & Son") in respect of certain alleged defects concerning the construction of a home. Strangas & Son brought a claim in respect of amounts outstanding by way of the cost of the building project. Eventually both claims ended up before the Tribunal. They were heard in July 2013. Certain orders were handed down by the Tribunal on 10 July 2013 (see Koutoulas v Strangas & Son Building Contractors Pty Ltd [2013] NSWSC 1260 at [3]). 3It seems that Mr and Mrs Koutoulas changed their legal representation shortly afterwards. Their new solicitor corresponded with the Tribunal in relation to the form of orders that should be made as a consequence of the Tribunal's decision. The orders were amended. The new solicitor also corresponded with Strangas & Son's solicitors about the progress of the matter. 4Eventually on 16 August 2013 the proceedings came before the Tribunal again. Orders for the payment of interest by Mr and Mrs Koutoulas as well as for costs were made. 5The reasons of the Tribunal member reveal that the costs order was said to predominantly follow from various Calderbank offers. Those reasons also record that there was no appearance on behalf of Mr and Mrs Koutoulas but that the Tribunal member was satisfied that "notices of hearing were sent on 5 August 2013 and 8 August 2013". Copies of those notices are apparently not yet available to the parties. They were not tendered before me. 6Subsequent to that decision Mr and Mrs Koutoulas filed an application for a rehearing by the Tribunal pursuant to s 68 of the Consumer, Trader and Tenancy Tribunal Act 2001. In support of their application they included affidavits from their solicitor and Mr Koutoulas. Both deposed to not having received notification from the Tribunal of the hearing on 16 August 2013 and to not being aware that the hearing was being conducted. 7Ultimately their application for a rehearing was refused by the Chairman of the Tribunal. This was so because s 68(13)(a) precludes a person making an application for a rehearing if the amount claimed or disputed under the concluded proceedings is more than the amount prescribed by the regulations. Apparently the amount prescribed by the regulations was $30,000 (see regulation 25 of the Consumer, Trader and Tenancy Tribunal Regulation 2009). Accordingly the application was doomed from the outset. 8It should be noted in the meantime on 12 August 2013 Mr and Mrs Koutoulas commenced proceedings in the Commercial List of the Equity Division. On 2 September 2013 those proceedings were dismissed by Stevenson J and Mr and Mrs Koutoulas were ordered to pay Strangas & Son's costs of those proceedings on an indemnity basis ([2013] NSWSC 1260). His Honour's judgment reveals that the relief sought in those proceedings was some form of mandatory order seeking to have Strangas & Son complete the various steps that they were said to have been ordered to do by the Tribunal's decision in July. His Honour found that this Court did not have jurisdiction to enforce the Tribunal's orders as there was a regime provided for in the Act which gave effect to its orders. 9At [22] of his Honour's judgment, Stevenson J was critical of the plaintiffs. One aspect of his Honour's criticism concerned their failure to have a legal representative attend the Tribunal on 16 August 2013. It does not appear that his Honour meant by that to make a finding that they were on notice of that hearing. That does not appear to have been a matter relevant to his Honour's determination. 10It must be said that the summons filed in these proceedings is inadequate. It does not identify the precise jurisdiction of the court that is being invoked or specify the grounds for intervention. Nevertheless after some argument it became clear that what is in effect being invoked is the supervisory jurisdiction of this Court confirmed by s 69 of the Supreme Court Act 1970. Section 65(1) of the Act is a form of privative clause in respect to Tribunal decisions. However, s 65(3) provides for an exception to the privative clause in respect of denials of procedural fairness and a ground which, on its face, appears to equate to jurisdictional error. 11The material certainly raises an arguable case that there was a denial of procedural fairness by the Tribunal in making the orders that it did on 16 August 2013. The affidavits filed by the plaintiffs put forward an arguable basis for concluding that they were not given proper notice of the hearing. The question as to whether the Tribunal did take reasonable steps to bring the date of the hearing to their attention will no doubt substantially turn upon onto where and to whom it sent notices of the hearing. However at this stage the plaintiffs' contention is, as I have said, reasonably arguable. 12A further potential ground was raised in argument concerning the power of the Tribunal to award interest on the basis set out in s 100 of the Civil Procedure Act 2005. In light of my conclusion in relation to procedural fairness, it is not necessary for me to address the substance of that ground and whether, if it is established, it will amount to jurisdictional error. 13A number of matters were raised by the defendant in opposition to the grant of a stay. The first was to the effect that unless and until the Tribunal's file can be found it cannot be said that there was a denial of procedural fairness. That may be so in terms of a final hearing but as I have said the plaintiffs' affidavits at least raise an arguable case to that effect. 14Second, various submissions were made about the failed application for the rehearing and in particular the failure of the plaintiffs to serve that application on the defendant. In my view the only significance of the doomed application for a rehearing is it confirms that there is no other means by which the plaintiffs can challenge the decision of the Tribunal for a breach of procedural fairness other than to invoke this Court's supervisory jurisdiction. 15It was further contended that it will be necessary for the plaintiffs to show that, had they been given notice of the Tribunal hearing, then the outcome would have been different. That is certainly not the case for any claim of breach of procedural fairness. To the contrary, all that needs to be to shown is the outcome might have been different. At this early stage it is not possible for the Court to find that, even if the plaintiffs established a breach of procedural fairness, relief on discretionary grounds would be refused. 16Further it was submitted that there was some oppressive, vexatious or burdensome behaviour of the plaintiffs in filing multiple challenges to the Tribunal's decisions and to the inadequate manner in which the summons was drafted. I have already referred to the summons and its inadequacies. That will need to be addressed by an order that an amended summons be filed. 17As for the fact that this is the second time that this Court has been approached, clearly the proceedings before Stevenson J were misconceived. However they involved a different aspect of the Tribunal's decision. The structure of the Act clearly contemplates that complaints about procedural fairness can be brought in this Court. 18It was further submitted that a condition of any grant of a stay be that the plaintiffs pay the costs of the proceedings before Stevenson J. I will not impose that as a condition of any stay. That order simply remains extant and it will be a matter for the plaintiffs to comply with it. There is no restraint upon the defendants seeking to enforce it. 19Finally, there was a debate about whether a condition of the stay should include some form of order requiring the plaintiffs to pay the balance of the substantive judgment. I do not think it is appropriate on a stay application for this Court to start making orders about how the substantive orders of the Tribunal should be implemented. The parties are simply left to take their course in that regard. 20Accordingly: (1)Upon the provision by the plaintiffs by their counsel of the usual undertaking for damages I order that until further order the orders of the Consumer, Trader and Tenancy Tribunal made on 16 August 2013 in file number HB10/50251 be stayed. (2)I order the plaintiffs to file and serve an amended summons specifying, inter alia, the jurisdiction of the court that is invoked and the grounds of the application on or before 5:00pm on 20 September 2013. (3)I order the plaintiffs to file and serve all the affidavits upon which they proposes to rely on or before 4pm on 26 September 2013. (4)I stand over the proceedings for further directions before a Registrar of this Court at 9am on 27 September 2013. (5)I grant either party leave to issue either a subpoena or a notice to produce directed to the Tribunal for the production of all or parts of their file, such notice to be returnable on 27 September 2013. 21Counsel for Strangas & Son, Mr O'Connor, seeks the costs of the stay application on the basis that the summons that was filed did not properly specify the basis of the Court's jurisdiction that was being invoked or the grounds of the application. He submits that had those matters been made clear he could have given his client appropriate advice and perhaps the matter might have been shorter. There is some force in that, although I note that when the basis was clarified the stay was nevertheless opposed. Accordingly, I order that the costs of the stay application be the defendant's costs in the cause.