Woolfe v Alexander Sussman t/as A Sussman Construction Consulting Services and Anor [2001] NSWSC 702 (18 July 2001)

Last Updated: 29 August 2001

NEW SOUTH WALES SUPREME COURT

CITATION: Woolfe v Alexander Sussman t/as A Sussman Construction Consulting Services & Anor [2001] NSWSC 702



CURRENT JURISDICTION: Civil

FILE NUMBER(S): 10937/01

HEARING DATE{S): 18 July 2001

JUDGMENT DATE: 18/07/2001

PARTIES:
Denise Woolfe (Plt)
Alex Sussman (1D)
Fair Trading Tribunal (2D)

JUDGMENT OF: McClellan J

LOWER COURT JURISDICTION: Fair Trading Tribunal

LOWER COURT FILE NUMBER(S): BU 2000/5318

LOWER COURT JUDICIAL OFFICER: Deputy Chairperson McDonnell

COUNSEL:
J Gruzman (Plt)
In person (1D)
Submitting appearance (2D)

SOLICITORS:
Herd & Associates (Plt)
In person (1D)


CATCHWORDS:
Administrative law
appeal on questions of law from a decision of the Home Building Division of the Fair Trading Tribunal
building dispute
redevelopment proposal
whether the Tribunal erred in holding it had jurisdiction to determine the claim
whether goods or services provided in the course of considering the feasibility of the redevelopment to be considered "residential building work"
whether plaintiff denied natural justice as a result of the Tribunal's failure to record the correct address.

ACTS CITED:
Home Building Act 1989 s 89(B), s 3(1)

DECISION:
See para 25


JUDGMENT:


THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION


McCLELLAN J


WEDNESDAY, 18 JULY 2001


10937/01 - WOOLFE v ALEXANDER SUSSMAN t/as A SUSSMAN CONSTRUCTION CONSULTING SERVICES & ORS


JUDGMENT


1 HIS HONOUR: This matter comes before me by way of summons in which the plaintiff seeks various declarations and orders in relation to a decision of the Fair Trading Tribunal. That decision was given in favour of the first defendant when he brought proceedings in the Tribunal claiming moneys said to be owing to him for services he provided to the plaintiff in relation to the re-development of her property. The plaintiff owned a dwelling on a large parcel of land which was considered to be suitable for re-development. Being inexperienced in such matters, she, through her then solicitor, was introduced to the first defendant as a firm who could assist her to determine an appropriate re-development outcome for her property. In contemplation was a re-development with a duplex arrangement.

2 Apparently the plaintiff had been in discussion with a plumber and it was contemplated that an arrangement might be entered into between her and the plumber to effect the development. The first defendant was brought in to assess the feasibility of such a project and to give other advice. That project did not proceed but the first defendant continued to provide services by way of valuations, feasibilities, potential cash flows, inquiries as to finance and quotes from project builders. Generally, he was called upon, and did advise, in relation to the "best use" of the property. I have summarised the elements of the service which he provided from the description which he gave me in court today.

3 The matter came before the Fair Trading Tribunal and after some initial discussion as to jurisdiction, it was assigned to the Home Building Division of that body, the Tribunal having decided that it had jurisdiction. The Tribunal determined the matter, and, as I have already stated, found in favour of the first defendant. That decision is dated 25 August 2000 and was published under the hand of Deputy Chairperson McDonnell.

4 In the decision the Tribunal addressed the evidence which was provided to it and summarised the arguments of the parties. It is stated that the applicant's argument was that his retainer was "always to act as project consultant and supervisor". Apparently he gave evidence that he had other projects of his own at the time and had no interest in a suggested joint venture which Mrs Woolfe had expressed interest in. He also had no interest in financing her project. Apparently he stated to the Tribunal from the beginning that of his retainer through to November 1998 he carried out his work as a consultant only.

5 The Tribunal ultimately found that the plaintiff and the first defendant did enter into a contract for the supply of services by the first defendant. It was found that that contract came into existence in July 1998 and pursuant to it the first defendant supplied the agreed services.

6 Having found the Tribunal had jurisdiction, the Deputy Chairperson proceeded to make a finding that the plaintiff was indebted to the first defendant in the sum of $9250. The Tribunal's practice is to post copies of its decisions to the parties. The evidence discloses that this was done, although I am satisfied that the copy posted to the plaintiff was not correctly addressed.

7 There was obvious confusion as to the correct address of the plaintiff who lives in a complex of residential buildings in which there are four blocks. The units in each block are given a number, starting at 1, and extending through to the final unit in the block. The way in which the units in each block are distinguished, one from the other, is by identification of the individual blocks.

8 The plaintiff's correct address is unit 2D, 44 William Street, Botany. It would appear that the Fair Trading Tribunal did not have an accurate record of the plaintiff's address. Although I am satisfied that during the course of the hearing the plaintiff told the Tribunal of her correct address, it would appear this information did not find its way to the administrative section so that a copy of the judgment could be forwarded to the correct address in the ordinary course. Accordingly, I am satisfied that the plaintiff did not receive a copy of the judgment from the Tribunal within the time necessary for her to seek a review of the Tribunal's decision if she chose that course.

9 The first defendant gives evidence that on two occasions, and before time had expired, he personally delivered copies of the judgment to the plaintiff's premises. He gives evidence he did this by leaving the documents under the door of the plaintiff's dwelling. The plaintiff gives evidence that whatever may have been the position in relation to the first defendant's delivery of the copies of the judgment, she did not receive them. Having regard to the description of the placement of the judgment at the premises, if the plaintiff did not receive the copies left by the first defendant this must only have been because of the intervention of some third party. On both occasions the plaintiff was not home and thus it is possible, although I have no evidence which would enable me to form any judgment as to how likely it might be, that a stranger has uplifted the documents. However, I am satisfied that the plaintiff did not receive them.

10 When the plaintiff became aware of the decision of the Tribunal, and all the steps which the first defendant had taken to enforce the judgment, she became concerned and approached the Fair Trading Tribunal. She made application to the Tribunal for a re-hearing. In the meantime, apparently there had been a stay granted on the enforcement of the Tribunal's order and the application for re-hearing came before Senior Member P H Maloney. Having set out the statutory grounds for a re-hearing, the Senior Member noted that the application should have been made within fourteen days of receipt of the written notice of decision said to have been posted to her on 28 August. The consequence was that, in compliance with the statute, the application for re-hearing should have been made no later than 16 September 2000 but had not been lodged until some three months later. The Senior Member, having determined that the application was out of time, considered whether or not the discretion available under cl 20 of the Fair Trading Tribunal Regulation 1999 to vary or dispense with the time requirement should be exercised in favour of the plaintiff.

11 The Senior Member determined that issue against the plaintiff on the ground that he was not satisfied that there was good reason for the delay, and accordingly, there was no circumstance which would preclude him exercising the available discretion.

12 Before me the plaintiff submits that the decision of the Tribunal is flawed, both as to the original determination and the application for re-hearing. It is submitted that the dispute was not one within the Tribunal's jurisdiction. It is further submitted that by reason of the failure to post a copy of the decision to the plaintiff's correct address she has been denied natural justice. That submission is extended to include the process by which the application for re-hearing was dealt with. It is submitted that the consideration of that application is fundamentally flawed in that the Senior Member failed to have regard to the essential elements in the exercise of the discretion. Those elements were set forth and discussed by McHugh J in Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479.

13 Attention has also been drawn by the plaintiff to the decision of Rolfe J in Full Brick Homes Pty Ltd v Consumer Claims Tribunal & Ors 13 February 1997, NSWSC. In that case his Honour found that a failure to notify a party of the date of a hearing had the consequence that there had been a breach of the rules of natural justice entitling the party to relief.

14 The fundamental issue in this matter is whether the Tribunal had jurisdiction.

15 The extent of the Tribunal's powers in relation to money claims arising from building disputes is provided by Pt 5 of the Home Building Act 1989. Section 89(B) provides that the Tribunal has jurisdiction to hear and determine any building claim brought before it in accordance with the Division. A building claim is defined as:

"s 84(1) In this Part:

building claim means a claim for:

(a) the payment of a specified sum of money, or

(b) the supply of specified services, or

(c) relief from payment of a specified sum of money, or

(d) the delivery, return or replacement of specified goods or goods of a specified description, or

(e) a combination of two or more of the remedies referred to in paragraphs (a) - (d)

that arises from a supply of building goods or services, whether under a contract or not, or that arises under a contract that is collateral to a contract for the supply of building goods or services, but does not include a claim that the regulations declare not to be a building claim."

16 It can be seen that that definition depends upon the concept of "building goods or services" which is also defined. It means "building goods or services supplied for or in connection with the carrying out of residential building work or specialist work." (see s 84(1)). "Residential building work" is also defined:

"S 3(1):

residential building work means any work involved in, or involved in co-ordinating or supervising any work involved in:

(a) the construction of a dwelling, or

(b) the making of alterations or additions to a dwelling, or

(c) the repairing, renovation, decoration or protective treatment of a dwelling.

· It includes specialist work done in connection with a dwelling and work concerned in installing a prescribed fixture or apparatus in a dwelling (or in adding to, altering or repairing any such installation).

· It does not include work that is declared by the regulations to be excluded from this definition."

17 "Specialist work" means "plumbing, gas-fitting, electrical or other work" dealt with by the regulations. (see s 3(1)). Although the expression "in connection with" is an expression of wide meaning and would give the Tribunal a broad jurisdiction, it is nevertheless necessary that the goods or services be supplied in relation to residential building work or specialist work.

18 In my opinion, residential building work is, as the definition makes plain, confined to building work in pursuance of the physical construction or alteration of a dwelling. It does not extend to goods or services provided in the course of considering the feasibility of the re-development of a property or the means by which utilising suitable valuations and cash flow projections the re-development of a property may be financed.

19 In the present case I am satisfied that the work performed by the first defendant was not relevantly residential building work and accordingly the claim brought in the Tribunal was not one which could be determined by it. Section 89B being confined in the manner I have indicated, the Tribunal erred in holding that it had jurisdiction to determine the claim. It follows that the decision with respect to the original claim and the re-hearing made by the Tribunal must be quashed. That will leave the first defendant in the position where, if he elects to take such a course, he can bring proceedings in the Civil Claims jurisdiction.

20 With respect to the second submission of the plaintiff, I am also satisfied that the plaintiff was not given natural justice. It is essential that bodies such as the Tribunal ensure compliance with its own procedures. Great care must be taken to ensure that the postal addresses of parties are correctly recorded and documents forwarded to that address. This case is an illustration of how a failure to record the correct address can work a potential injustice.

21 I am satisfied from the evidence of the tape that the Tribunal should have ensured its records correctly recorded the plaintiff's address so that her rights to seek a re-hearing would not be lost by any failure to provide her with a copy of the Tribunal's decision within the prescribed time.

22 In those circumstances, I propose to make order 2 in the amended summons.

23 The plaintiff seeks an order for costs. The first defendant resists that order pointing to the fact that the error which I have found was one made by the Tribunal when all he has done throughout is abide the decisions made by that body. Against that it is said with some force that the plaintiff made plain when she filed her summons, that the basis upon which she would bring the proceedings to set aside the Tribunal's findings. It is said that the first defendant could have been under no illusion but that a challenge would be brought to the jurisdiction of the Tribunal and also a submission would be made that the plaintiff was denied natural justice.

24 In my opinion, it is appropriate for me to make an order for costs in the plaintiff's favour. It is clear that at an earlier time the first defendant could have considered the issues raised by the plaintiff in her summons and taken steps which would have avoided the necessity for the matter to be argued before the court today. The plaintiff having succeeded in relation to the matters that she originally foreshadowed, in my opinion it is appropriate for me to make an order for costs in her favour.

25 Accordingly, I make order 2 in the amended summons. I order the first defendant to pay the plaintiff's costs and I direct that if the legislation applies, the first defendant is to have a certificate under the Suitors Fund Act.
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LAST UPDATED: 28/08/2001