District Court New South Wales Medium Neutral Citation: Crystal Pools Pty Limited v Miller [2014] NSWDC 127 Hearing dates: 30 May 2014 Decision date: 30 May 2014 Before: Neilson DCJ Decision: Leave to appeal refused Appeal dismissed Catchwords: APPEAL - Leave to appeal - Grounds of appeal lacked specificity - Grounds failed to satisfy UCPR 50.4(2) - Proposed pleading inadequate to ground jurisdiction to deal with error of law Legislation Cited: Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) Consumer, Trader and Tenancy Tribunal Regulation 2002 (NSW) Uniform Civil Procedures Rules 2005 (NSW) Cases Cited: Edyp v Brazbuild Pty Ltd [2011] NSWCA 218 Category: Principal judgment Parties: Crystal Pools Pty Limited Kara Miller Representation: Solicitors Worthington & Reading Lawyers (Plaintiff) Picone & co (Defendant) Counsel Mr Webb QC (Plaintiff) Mr Bland (Plaintiff) Mr Miller SC (Defendant) Mr To (Defendant) File Number(s): 2014/15693 Publication restriction: No Judgment 1HIS HONOUR: The plaintiff, Crystal Pools Limited, seeks leave to appeal from a decision of the Consumer, Trader and Tenancy Tribunal made on 21 November 2013. The plaintiff seeks leave because the summons commencing the appeal was filed out of time. It was filed on 17 January 2014. The relief claimed is that the order of Senior Member Meadows, formerly of the CTTT, made on 21 November 2013 in matter HB 12/39507 be set aside and that the plaintiff be awarded its costs of those proceedings. It also seeks an order for indemnity costs and costs of the current appeal. 2The originating summons contains only one ground of relief. It is this: "The senior member erred in respect to the application of s 53 of the Consumer, Trader and Tenancy Tribunal Act 2001 and the effect on it by the Consumer, Trader and Tenancy Tribunal Regulations, particularly reg 20(4) and (5). Such errors are found at and are not limited to, paras 26, 32, 33, 34, 35, 36, 37 and 38 of the decision of the senior member". 3The matter came before the Judicial Registrar on 17 February 2014. The Judicial Registrar made a number of orders. They were these: "1. Direct that the plaintiff file any Amended Summons seeking an extension of time to appeal, and serve all evidence on which it proposes to rely for an extension of time by 3 March 2014. 2. Direct that the defendant serve any evidence on which it proposes to rely in relation to the plaintiff's application for an extension of time by 17 March 2014. 3. List the matter for further directions, and to set a hearing date for the application for extension on 25 March 2014. 4. Liberty to restore on two days' notice". Pursuant to the leave sought, an amended summons was filed in the registry on 6 March 2014 and that did not vary in any way the sole ground of appeal relied upon. 4The matter came before the Judicial Registrar again on 25 March as he had earlier ordered. Again, a further amended summons was filed in court on that day, making some amendments to the amended summons, but of no relevant significance. On 25 March the plaintiff was represented by Mr Bland of counsel and the defendant was represented by Mr To of counsel. Those two gentlemen had appeared before the Judicial Registrar on 17 February 2014. On 25 March Mr To handed to the Judicial Registrar some written submissions. Paragraph 2.4 and the following of those written submissions are these: "2.4 The order sought to be appealed was a discretionary judgment on costs. The sole ground of appeal does not identify the, or any, particular decision that engages s 67. The defendant sought clarification two weeks ago (see attached). No answer has been provided in response. The Court cannot presently be satisfied it has jurisdiction, or that the appeal is fairly arguable. 2.5 It would not be just to require the defendant to incur the substantial cost of preparation for a full hearing where the appeal appears to not even be competent". Further, para 5.1 of Mr To's submissions was this: "5.1 The plaintiff should be able to articulate how its case engages the appeal jurisdiction - it would be highly surprising if the appeal had been commenced without that essential first question being identified". The document attached to those written submissions is a copy of exhibit 1 before me. 5Exhibit 1 is a letter from the defendant's solicitor to the plaintiff's solicitors, bearing date 10 March 2014. After referring to the plaintiff's amended summons and the single ground of appeal identified in each pleading, the same ground in each pleading, the letter continues thus: "As you would be aware, an appeal pursuant to s 67(1) of the Consumer, Trader and Tenancy Tribunal Act 2001 may only be brought from a decision on 'a question with respect to a matter of law'. The identification of a relevant decision is essential to engage the court's jurisdiction. It is not apparent from the ground of appeal identified in the Amended Summons that any such decision within the meaning of s 67(1) has been identified. We will invite you to specify, with particularity, the decision(s) on a question with respect to a matter of law that the plaintiff contends engages the appellate jurisdiction of the Court". The letter then asks for a reply by 24 March. However, there is no evidence before me that any reply was made to that communication. 6On 25 March, the Judicial Registrar again made a number of orders. They were these: "1. The plaintiff file and serve the Court book on or by 6 May 2014 including transcript in typed form. 2. The plaintiff file and serve the outline of submissions by 13 May 2014. 3. Defendant to file and serve the outline of submissions by 26 May 2014. 4. Matter be fixed for hearing for one day on 30 May 2014". The "Court book" being the transcript and exhibits of proceedings in the CTTT, comprises 640 pages. How it was expected that a case involving that amount of material could last only one day is beyond my, perhaps incompetent, ken. 7On 14 May 2014 the plaintiff filed a second further amended summons, again making some minor amendment but not amending in any way the grounds relied upon by the plaintiff. On 15 May 2014 the plaintiff filed its written submissions, two days out of time. On 27 May 2014 the defendant filed her written submissions, one day out of time. 8When the matter first came before me, I tried to ascertain what was the nature of the appeal. Complaint was made by learned senior counsel for the defendant about the lack of any ground of appeal identifying a question of law. 9The current appeal is governed by UCPR Pt 50. UCPR 50.4(2) provides this: "The summons must also contain a statement setting out briefly but specifically the grounds relied on in support of the appeal including, in particular, any grounds on which it is contended that there is an error of law in the decision of the court below". That provision is remarkably similar to UCPR 51.18(1)(e) which relates to the contents of a notice of appeal to the Court of Appeal. That paragraph is this: "briefly, but specifically, the grounds relied upon in support of the appeal, ..." There is commentary in Ritchie's Uniform Civil Procedure NSW Practice, upon what must be briefly and specifically pleaded in a notice of appeal to the Court of Appeal. The same principles apply to an appeal brought to this Court from, for example, the CTTT. 10Learned senior counsel for the defendant was then called away to the Supreme Court for a short while and then I commenced to try to distil, from what I was told by learned senior counsel for the plaintiff, what were or might be the grounds of appeal. I managed to distil three. They were these: "1. Where the respondent brought a claim valued at more than $30,000 and withdrew that claim, the Tribunal erred in law in failing to order the respondent to pay the appellant's costs in accordance with cl 20(4) of the CTTT Regulation 2002, on the basis that costs ought to have followed the event. 2. The Tribunal failed to award costs according to the costs scheme, in failing to apply cl 20 of the CTTT Regulation 2002. 3. The Tribunal failed to deal with the appellant's claim for costs under cl 20(5)(b) of the CTTT Regulation 2002". Involved in the latter ground is a question of the proper construction of the paragraph in question, which is far from clear. Complaint is made, that was my "descending into the arena" to try to find out what the nature of the appeal was, but I leave that matter to one side at the present time. 11Learned senior counsel for the defendant advised me that he was not ready to meet the proposed third ground of appeal and his learned junior thinks that there may be some learning on the proper construction of cl 20(5)(b) from one of the Associate Justices of the Supreme Court. In essence, even if the ground were permitted to be propounded, he was not ready to meet it and needed an adjournment. 12The matter is even further complicated by the fact that the written submissions filed on behalf of the defendant on 27 May 2014 fairly raise the question of the inadequate grounds of appeal filed and relied upon, until I propounded some grounds of appeal today. Reference is made, for example, in [3] to the decision of Allsop J in Edyp v Brazbuild Pty Ltd [2011] NSWCA 218. The written submissions return to that authority commencing at [30]. The written submissions state this: "[30] In the context of a discretionary costs decision, what needs to be demonstrated to ground leave is that there is a fairly arguable case that an identified decision on 'a question with respect to a matter of law' was in error. [31] The starting point was described in the following way by Allsop P in Edyp v Brazbuild: '[35] The essential first task in any appeal under s 67 is therefore to identify the express or implied decision on a question with respect to a matter of law. Without the existence or identification of such a decision, the District Court will have no authority or jurisdiction to review the decision of the Tribunal. The relevant decision will have a clear relationship with any asserted 'error of law'. Though 'error of law' is not the expression of the jurisdictional discrimen, it is centrally relevant for at least three reasons. First, the statute provides for an 'appeal'. As a matter of language and legal taxonomy, it can be accepted that the function of an appeal is to remedy the consequence of relevant error. Secondly, it is the 'dissatisfaction' of the party with the decision that is to be remedied by the appeal process. Dissatisfaction implies that a party has a complaint about the decision, which must carry with it the notion that the decision is said to be relevantly wrong. Thirdly, it is a decision on a question (implying an answer) about which there is to be dissatisfaction. [36] One will thus be assisted in identifying the relevant decision (express or implied) by understanding the question, the answer and the error that was posed, answered or said to have been made by the Tribunal. Given the width of the notion of decision (express or implied) there may be more than one decision involved or the relevant decision may be able to be expressed at different levels of abstraction. Once the relevant decision or decisions is or are identified, for there to be an appeal legitimately founded in the District Court, that decision (or one of them) must satisfy the description as one on 'a question with respect to a matter of law'..." Further on in the defendant's submissions appears this further quotation: "[37] Whether in any given case there is a decision on a question with respect to a matter of law is not a matter of form or drafting. It is a matter of substance involving the characterisation of the decision, the question and the error. Understanding the error will be critical. This will involve an analysis of the reasoning and orders of the tribunal. [38] A party is not free to construct, by careful drafting, an implied decision in order to transmogrophy what is in substance a question of fact into one with respect to a matter of law. At [35], the written submissions point out that the further amended summons does not identify any challenge to the tribunal's interpretation of s 53 of the CTTT Act and the Regulation. The same is repeated in other verbiage in the following two paragraphs of the submissions. Until this morning no attempt was made by the plaintiff to seek to state what the grounds of appeal were in a form clearly identifying the error of law. 13It has to be borne in mind the nature of the proceedings in the Tribunal. There was a dispute between the plaintiff and the defendant about the construction by the plaintiff on the defendant's property at Port Hacking of a swimming pool. The current defendant was referred to as "the owner" and the current plaintiff was referred to as "Crystal" in the Tribunal's reasons. The final price for the installation of the pool was $76,000. The tribunal's reasons continue thus: "[3] Prior to completion of the pool, in about March 2012, the owner claimed that Crystal caused damage to her concrete driveway which was insufficiently protected by Crystal to prevent damage by Crystal's machinery being driven over the driveway. Following a complaint to the Office of Fair Trading by the owner, a Fair Trading Inspector attended the premises on 24 May 2012 and issued a rectification order. Crystal did not comply with that order but prior to the expiration of the time for compliance, commenced its proceedings. [4] Crystal commenced proceedings in the Tribunal (HB 12/29235), seeking an alleged outstanding payment of $9,701.50 on 4 June 2012. The owner commenced her claim (HB 12/39507), alleging: · Misrepresentation in relation to costs of excavation and tipping; · Breach of contract in relation to claiming of variations; · Damage to the driveway; · Incorrect location of the pool; and · Various smaller items. [5] It is important to understand the nature of the owner's claim. In relation to the allegation that the pool was incorrectly located, the owner claimed the full initial price of the pool ($54,000) or alternatively the sum of $25,000 being for 'diminished access' to the back yard. The owner also claimed the variation for extra excavation of $17,348 and $13,406.25 for a replacement driveway. Other smaller claims brought the total claim to either $88,735.75 or $59,735.75 depending on the alternative claim with regard to location. [6] The parties were subject to the usual case management procedures within the Tribunal and evidence was prepared and served by both parties. On 17 May 2013, the owner wrote to the Tribunal requesting withdrawal of HB 12/39507 pursuant to s 48I(2) of the Home Building Act 1989. The withdrawal was confirmed by the registry by noticed dated 22 May 2013. The owner paid the amount claimed by Crystal, effectively disposing of that claim as well, except in relation to costs. The costs issue was listed for hearing on 13 August 2013. Both parties provided extensive written and oral submissions. The decision on costs was reserved. This is that decision". The decision of the Member was ten pages in length. What ran to trial in the CTTT concerned costs only. The current plaintiff then sought leave to appeal from that decision, the appeal being out of time. No adequate grounds of appeal were ever voiced until I voiced them today. The defendant is disadvantaged by the formulation of proper grounds of appeal by me and seeks an adjournment if I permit the appellant to formulate what I proposed as the plaintiff's grounds of appeal. 14It is in the interests of everybody that disputes of this nature come to an end, no matter how zealous and passionate lawyers might be about costs. It appears to me that the appropriate order is to refuse leave to the plaintiff to propound the grounds of appeal proposed by me. It appears therefore that the only ground of appeal proposed in the pleadings is inadequate to ground any jurisdiction in this Court to deal with an alleged error of law. 15I, therefore, refuse the plaintiff leave to appeal out of time. 16The appeal is, accordingly, dismissed. 17I order the plaintiff to pay the defendant's costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 August 2014