Argentieri v TUDORSHINE Pty Ltd - [2000] WADC 157

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: ARGENTIERI & ANOR -v- TUDORSHINE PTY LTD [2000] WADC 157

CORAM: NISBET DCJ

HEARD: 13 JUNE 2000

DELIVERED : 23 JUNE 2000

FILE NO/S: CIVO 232 of 1999

BETWEEN: NAZZERENO ARGENTIERI
STEPHANIE ARGENTIERI
Applicants
AND
TUDORSHINE PTY LTD
Respondent

Catchwords:

Appeal from Building Disputes Committee - Application for leave - Turns on own facts

Legislation:

Builders' Registration Act 1939

Result:

Leave refused

Representation:

Counsel:

Applicants: Mr B W Ashdown
Respondent: Mr P Walton

Solicitors:

Applicants: Ilbery Barblett
Respondent: Jackson McDonald

Case(s) referred to in judgment(s):

Jingellic Minerals NL v Abigroup Ltd (1992) 7 WAR 566
Nationwide News Pty Ltd v Bradshaw (1986) 84 FLR 49
Re Will of Gilbert (1946) 46 SR (NSW) 318
Wilson v Metaxis [1989] WAR 285

Case(s) also cited:

BHP Petroleum Pty Ltd v Oil Basis Ltd [1985] VR 756
Cardinal Constructions Pty Ltd v Argo (1996) 16 SR (WA) 344
Coulton v Holcombe (1986) 162 CLR 1
Cranley v Medical Board of Western Australia, unreported; SCt of WA; Library No 8610; 27 November 1990
Devries v Australian National Railways Commission (1993) 177 CLR 472
Goldfield Homes Pty Ltd v Blacker, unreported; DCt of WA; Library No D970379; 2 December 1997
Luton Holdings Pty Ltd v Lloyd (1995) 14 SR (WA) 139
Monash University v Burg [1984] VR 383
Niemann v Electronic Industries Ltd [1978] VR 431
Orr v Holmes (1948) 76 CLR 632
Perry v Smith (1901) 27 VLR 66
Stanley-Hill v Kool [1982] 1 NSWLR 460
Sutton v Gundowda Ltd (1950) 81 CLR 418
Watson v Wallington [1999] WADC 84
Wing Luck Foods v Lay Choo Lim [1989] WAR 358

NISBET DCJ: Section 41 of the Builders' Registration Act 1939 permits an appeal from the decision of the Building Disputes Committee to this Court subject to leave being granted.
In Nationwide News Pty Ltd v Bradshaw (1986) 84 FLR 49 O'Leary CJ set out (55-56) guidelines for the exercise of the discretion to grant or withhold leave to appeal which were summarised by the Full Court in Jingellic Minerals NL v Abigroup Ltd (1992) 7 WAR 566 at 571 with approval, as follows:
"1.The legislation providing that there is no appeal from an interlocutory judgment other than by leave, the prima facie presumption is that the decision sought to be appealed is correct.
2.If leave is to be granted some prima facie case must be made out that the primary judge's exercise of discretion miscarried and, if it appears prima facie that the order appealed is clearly wrong, that the judge's discretion has miscarried in the sense that 'it has or must have been substantially effected by wrongful application of principle, or misunderstanding or erroneous assessment of the factual material … leave will generally be given'. Even if it does not appear prima facie that the primary judge's order was clearly wrong but it does appear that some injustice will result, the court will also generally give leave to appeal. It…

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: [2000] WADC 157
Decision Date

CaseChat Overview and Summary

Argentieri v Tudorshine Pty Ltd was a case heard by the District Court of Western Australia in which the applicants, Nazzereno and Stephanie Argentieri, sought leave to appeal the decision of the Building Disputes Committee, which had been made in favour of the respondent, Tudorshine Pty Ltd. The applicants argued that the committee had made errors in its determination of the accounting between the parties and sought leave to appeal on those grounds. The legal issues in this case revolved around the criteria for granting leave to appeal from the Building Disputes Committee, the presumption of correctness of the committee's decision, and the applicants' credibility in presenting their evidence.

The court, Nisbet DCJ, considered the guidelines set out in Nationwide News Pty Ltd v Bradshaw and Jingellic Minerals NL v Abigroup Ltd for the exercise of discretion in granting leave to appeal. The court held that the applicants must demonstrate that the committee's decision was wrong or attended with sufficient doubt and that substantial injustice would be done by leaving the decision intact. The court found that the applicants had not made out a prima facie case for leave to appeal as the committee's decision was supported by the evidence before it and there was no arguable error of fact or law.

However, the court noted that the respondent had admitted to receiving $152,000 from the applicants, which the committee had overlooked in its calculations. Therefore, the court granted the applicants leave to appeal only to the extent of varying the order to take account of the extra $2000 received by the respondent. The court found that the applicants' lack of credibility in respect of the payment made on 12 December 1996 justified the committee's rejection of their evidence and acceptance of the respondent's evidence.

In conclusion, the court granted the applicants leave to appeal only to the extent of varying the order to take account of the extra $2000 received by the respondent. The court found that the committee's decision was supported by the evidence before it and there was no arguable error of fact or law. The court also noted the applicants' lack of credibility in presenting their evidence, which justified the committee's rejection of their evidence and acceptance of the respondent's evidence. The court will hear the parties as to costs.

Orders