Arenco Pty Ltd v CSR Ltd - [2004] NSWSC 542

NEW SOUTH WALES SUPREME COURT

CITATION: Arenco Pty Ltd v CSR Ltd & Anor [2004] NSWSC 542

CURRENT JURISDICTION: Common Law - Administrative Law List

FILE NUMBER(S): 30018/2004

HEARING DATE{S): 11 June 2004

JUDGMENT DATE: 25/06/2004

PARTIES:
Arenco Pty Ltd
(Plaintiff)

CSR Limited
(First Defendant)

Consumer, Trader & Tenancy Tribunal
(Second Defendant)

JUDGMENT OF: Master Harrison

LOWER COURT JURISDICTION: CTTT

LOWER COURT FILE NUMBER(S): HB 02/41813

LOWER COURT JUDICIAL OFFICER: Chairperson Ransome

COUNSEL:
Mr P Braham
(First Defendant)

SOLICITORS:
Dr D Doyle,
The Builders' Laywer
(Plaintiff)

Submitting Appearance
(Second Defendant)

CATCHWORDS:
Appeal from decision of CTTT - Jurisdiction - building work

ACTS CITED:
Consumer Claims Act 1998 (NSW)
Consumer, Trader & Tenancy Tribunal Act 2001 (NSW) s 67
Home Building Act 1989 (NSW) - s 48
Trade Practices Act 1974 (Cth)

DECISION:
(1) The decision made by CTTT Chairperson Ransome on 28 January 2004 is affirmed
(2) The appeal is dismissed
(3) The plaintiff's summons filed 25 February 2004 is dismissed
(4) The plaintiff is to pay the first defendant's costs a agreed or assessed.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST
MASTER HARRISON
FRIDAY, 25 JUNE 2004
30018/2004 - ARENCO PTY LTD v CSR LIMITED & ANOR
JUDGMENT (Appeal from decision of CTTT – Jurisdiction – building work)

MASTER: By summons filed 25 February 2004 the plaintiff seeks: firstly, an order granting leave to commence these proceedings pursuant to s67 of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) (the Act) in order to appeal the 28 January 2004 decision of Chairperson Ransome; secondly, an order that the second defendant has jurisdiction to determine application number HB 02/41813 and thirdly, an order that the second defendant proceeds to determine application number HB 02/41813 on its merits. The plaintiff relied on the affidavit of Catherine Lucy Hartland sworn 17 March 2004. The first defendant relied on the affidavit of James McLean sworn 6 April 2004.
The plaintiff is Arenco Pty Ltd (Arenco) and was the applicant in the Consumer, Trader and Tenancy Tribunal (CTTT) proceedings. The first defendant is CSR Limited (CSR) and was the respondent in the CTTT proceedings. The second defendant is the CTTT and has filed a notice of submitting appearance.
Background
The dispute between Arenco and CSR related to the supply of building goods and services for the use in the conversion and construction of a former office building into a high-rise residential building at 1-15 Francis Street, East Sydney known as ‘Lumina Apartments’ (the property). In or about September 2000 the plaintiff states that the first defendant entered into an agreement with the plaintiff’s agents to supply acoustic wall systems, known as the ‘CSR Hebel Wall’, for use in the property. As noted by Chairperson Ransome, insofar as there was a written contract, it was between Buildup Interiors Pty Ltd and Yorkshire Masonry Pty Ltd. By the contract it appears that Yorkshire Masonry Pty Ltd were to install the acoustic wall systems. The wall systems were…

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.

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Details

Case: [2004] NSWSC 542
Decision Date: 25/06/2004

CaseChat Overview and Summary

Arenco Pty Ltd (Arenco) appealed against the decision of the Consumer, Trader and Tenancy Tribunal (CTTT) which held that it had no jurisdiction to hear Arenco’s claim against CSR Limited (CSR). The claim related to the supply of acoustic wall systems for the construction of a high-rise residential building in East Sydney known as ‘Lumina Apartments’. The dispute arose because Arenco claimed that the wall systems supplied by CSR were not fit for purpose and required substantial modification. The CTTT found that it had no jurisdiction to hear the matter because the Home Building Act 1989 (NSW) (HBA) dictated that only involvement in physical work would confer jurisdiction. The issue before the court was whether the CTTT had jurisdiction to hear Arenco’s claim against CSR.

The court held that the CTTT did have jurisdiction to hear the matter. The court found that the Home Building Act 1989 (NSW) did not dictate that only involvement in physical work would confer jurisdiction. The court found that the CTTT had jurisdiction to hear the matter because the supply of the acoustic wall systems was a contractual matter and the CTTT had jurisdiction to hear contractual matters. The court found that the CTTT had erred in law by holding that it did not have jurisdiction to hear Arenco’s claim against CSR. The court remitted the matter to the CTTT for rehearing.

The court ordered that the matter be remitted to the CTTT for rehearing. The court found that the CTTT had jurisdiction to hear Arenco’s claim against CSR and that it had erred in law by holding that it did not have jurisdiction. The court found that the CTTT had jurisdiction to hear the matter because the supply of the acoustic wall systems was a contractual matter and the CTTT had jurisdiction to hear contractual matters. The court found that the Home Building Act 1989 (NSW) did not dictate that only involvement in physical work would confer jurisdiction. The court ordered that the matter be remitted to the CTTT for rehearing.

Orders

Orders of the court

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Background

Background to the litigation

The plaintiff is Arenco Pty Ltd (Arenco) and was the applicant in the Consumer, Trader and Tenancy Tribunal (CTTT) proceedings. The first defendant is CSR Limited (CSR) and was the respondent in the CTTT proceedings. The second defendant is the CTTT and has filed a notice of submitting appearance.Background The dispute between Arenco and CSR related to the supply of building goods and services for the use in the conversion and construction of a former office building into a high-rise residential building at 1-15 Francis Street, East Sydney known as ‘Lumina Apartments’ (the property). In or about September 2000 the plaintiff states that the first defendant entered into an agreement with the plaintiff’s agents to supply acoustic wall systems, known as the ‘CSR Hebel Wall’, for use in the property. As noted by Chairperson Ransome, insofar as there was a written contract, it was between Buildup Interiors Pty Ltd and Yorkshire Masonry Pty Ltd. By the contract it appears that Yorkshire Masonry Pty Ltd were to install the acoustic wall systems. The wall systems were required as the property was subject to the Central Sydney Development Control Plan 1996 which makes provision for the acoustic properties of walls. Before the CTTT the plaintiff submitted that the wall systems supplied by CSR failed to provide the required results, were not for their purpose and/or required substantial remanufacture, rectification and modification for use in the residential construction. It is of note, but of no relevance to the issues in these proceedings that the plaintiff claimed damages in respect of negligence and misleading and deceptive conduct under the Trade Practices Act 1974 (Cth) and attempted to have the proceedings related to the cross claim against the acoustic consultants Renzo Tonin and Associates Pty Limited transferred from the CTTT to the District Court of NSW.Grounds of appeal The plaintiff’s grounds of appeal are that the Tribunal chairperson erred in holding that the CTTT did not have jurisdiction to hear the plaintiff’s claim insofar as the second defendant erred in finding that the Home Building Act 1989 (NSW) (HBA) dictated that only involvement in physical work would confer jurisdiction upon the CTTT. Section 65(3) of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) (the Act) provides that relief can be granted by way of a judgment or order in the nature of prohibition, mandamus, certiorari, declaratory judgment or an injunction if in relation to the hearing or determination of the matter, a party had been denied procedural fairness or the Tribunal had no jurisdiction to make the order. Section 67 of the Act allows for an appeal to be made to this court on a question of law. An appeal may only be made with leave of the court. Section 67(8) of the Act states that a reference to a matter of law includes a reference to a matter relating to the jurisdiction of the Tribunal. The onus lies on the plaintiff to demonstrate that there has been an error of law. Section 67(3) of the Act provides that after deciding the question of the subject of an appeal the court may, unless it affirms the decision of the Tribunal on the question that should have been made by the Tribunal, remit its decision on the question to the Tribunal and order a rehearing of the proceedings before the Tribunal.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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