Anvic Holdings v Constable - [2002] NSWSC 747

CITATION: Anvic Holdings v Constable & Anor [2002] NSWSC 747

CURRENT JURISDICTION: Common Law Division
Administrative Law List

FILE NUMBER(S): SC 30038 of 2002

HEARING DATE(S): 12 August 2002

JUDGMENT DATE: 27 August 2002

PARTIES :

Anvic Holdings Pty Limited (Formerly Tilecraft (Aust) Pty Limited) (Plaintiff)
v
Robert Julian Constable (First Defendant)
Consumer, Trader and Tenancy Tribunal
(Second Defendant)

JUDGMENT OF: Master Malpass

LOWER COURT
JURISDICTION : Consumer, Trader and Tenancy Tribunal

LOWER COURT
FILE NUMBER(S) : 99/70199 (BU1999/199)

LOWER COURT
JUDICIAL OFFICER : G J Durie, Senior Member

COUNSEL : Mr A J J Thompson (Plaintiff)
Mr S Kerr (First Defendant)
N/A (Second Defendant)

SOLICITORS: Brook Worthington (Plaintiff)
Colin Biggers & Paisley (First Defendant)
I V Knight - Crown Solicitor - Submitting Appearance (Second Defendant)

CATCHWORDS: Appeal - decision to transfer application to District Court made after conclusion of hearing on own motion - power of Tribunal - error in exercise of discretion - conscious or deliberate decision - entering into the arena uninvited.

LEGISLATION CITED: Consumer Claims Act 1998.
District Court Act 1973, s 145.
Fair Trading Tribunal Act 1998, s 23, s 23 (1).
Home Building Act 1989, s 84.

CASES CITED: Burwood Municipal Council v Harvey (1995) 86 LGERA 389.
Gallo v Dawson (1990) 64 ALJR 458.
Gizzi v GIO of NSW (25 July 1990).
House v The King (1936) 55 CLR 499.
Itek Graphix Pty Limited v Elliott [2001] NSWCA 442.

DECISION: See paragraph 24.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

Master Malpass

Tuesday 27 August 2002

30038 of 2002 Anvic Holdings Pty Limited (Formerly Tilecraft (Aust) Pty Limited) v Robert Julian Constable & Anor
JUDGMENT

1 Master: The summons was filed on 7 may 2002. The plaintiff brings an appeal against a decision made by the second defendant on 9 April 2002. On that day, the second defendant (the Tribunal) made an order transferring an application then before it to the District Court.

2 The dispute between the plaintiff and the first defendant has had a long and bitter history (it began as an application in the Tribunal in April 1999). The history may be found in an affidavit sworn by Mr Worthington. It is unnecessary to reproduce that history in the judgment. It suffices to merely mention some of it.

3 One aspect of the dispute came before me on 23 May 2001. I delivered judgment on 30 May 2001 and set aside certain orders made by the Tribunal.

4 On 3 October 2001, the Chairperson granted a re-hearing of the application.

5 The re-hearing took place on 14 March 2002 before Tribunal Member Durie. The first defendant was the applicant. The plaintiff was the respondent to the application. It made certain admissions which reduced to one issue what was then in dispute before the Tribunal. Further, it offered to pay the sum of $25,000.

6 The first defendant had brought a building claim in the sum of $66,659. The claim…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Anvic Holdings v Constable

Details

AGLC: Anvic Holdings v Constable [2002] NSWSC 747
Case: [2002] NSWSC 747
Decision Date: 27 August 2002

CaseChat Overview and Summary

The parties involved in this case are Anvic Holdings, the applicant, and Constable, the respondent. The dispute revolves around the decision of the Tribunal to transfer the application to the District Court after the conclusion of the hearing, which was done on the Tribunal's own motion. The matter was heard in the Supreme Court of Queensland. The central legal issue the court had to determine was whether the Tribunal had the power to make a decision to transfer the application to the District Court after the conclusion of the hearing on its own motion, and whether there was an error in the exercise of that discretion.

The court examined the circumstances surrounding the Tribunal's decision and whether it was a conscious or deliberate decision to enter into the arena uninvited. The court considered whether the Tribunal's decision was within its power and whether there was any error in the exercise of that discretion. After careful analysis, the court concluded that the Tribunal did have the power to make the decision to transfer the application to the District Court on its own motion. However, the court found that there was an error in the exercise of that discretion, as the decision was made without proper consideration of the relevant factors.

The court determined that the decision to transfer the application was flawed and ordered the case to be remitted back to the Tribunal for reconsideration. The court emphasised the importance of the Tribunal properly exercising its discretion and considering all relevant factors before making such a decision. The final orders of the court were that the decision to transfer the application to the District Court be quashed, and the case be remitted back to the Tribunal for reconsideration in accordance with the court's reasons.

Orders