Atkinson v Crowley

Case [2011] NSWCA 194


Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Atkinson v Crowley [2011] NSWCA 194
Hearing dates:7 July 2011
Decision date: 19 July 2011
Before: Giles JA at 1;
Basten JA at 2;
Young JA at 46
Decision:

(1) Direct that the proceedings brought by Clifford Atkinson be reframed so that the first and second respondents are Cameron Crowley and Eleanor Crowley.

(2) Refuse Clifford Atkinson leave to appeal against the judgment of Smart AJ in the Common Law Division of 11 May 2010.

(3) Order the applicant, Clifford Atkinson, to pay the costs of Cameron Crowley and Eleanor Crowley on the usual basis, and the costs of the Tribunal on a submitting basis.

(4) Dismiss the application of Lisa Anne Atkinson for leave to cross-appeal against the judgment of Smart AJ delivered on 11 May 2010.

(5) Order Lisa Anne Atkinson to pay the costs of Cameron Crowley and Eleanor Crowley of her leave application on the usual basis, and the costs of the Tribunal on a submitting basis.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

ADMINISTRATIVE LAW - judicial review - substituted service - procedural fairness - duty to give notice - whether the defendants had opportunity to resist the proceedings in the Tribunal

BUILDING AND CONSTRUCTION - claim for breach of statutory warranty implied under the Home Building Act 1989 (NSW), Pt 2C - whether available against co-owner spouse of holder of owner-builder permit - whether claim available in tort

LIMITATION OF ACTIONS - whether the Tribunal had jurisdiction to determine the claim - Home Building Act 1989 (NSW), s 48K

PROCEDURE - service - substituted service - whether order for substituted service resulted in procedural unfairness - whether order for substituted service at husband's business address effective in relation to husband and wife

PROCEDURE - judgments and orders - whether order bad as against one defendant effective against the other
Legislation Cited: Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), ss 28, 32, 35, 46, 67, 68, 78
Consumer, Trader and Tenancy Tribunal Regulations 2002 (NSW), cl 24(1)
Consumer, Trader and Tenancy Tribunal Regulations 2009 (NSW), cl 25(1)
Home Building Act 1989 (NSW), ss 18B, 18C, 18D, 48A, 48K, 92, 95, 96, 99, 101; Parts 2C, 3A, Div 4
Cases Cited: Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; 78 CLR 353
Bradvica v Radulovic [1975] VR 434
Bryan v Maloney [1995] HCA 17; 182 CLR 609
Chappell v Coyle (1985) 2 NSWLR 73
Coco v The Queen [1994] HCA 15; 179 CLR 427
Coulton v Holcombe [1986] HCA 33; 162 CLR 1

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AGLC
Atkinson v Crowley [2011] NSWCA 194
Case
[2011] NSWCA 194
Decision Date

CaseChat Overview and Summary

The proceedings concerned an appeal from a decision of Smart AJ in the Common Law Division of the Supreme Court of New South Wales. The applicant, Clifford Atkinson, sought to appeal a judgment concerning claims arising under the *Home Building Act 1989* (NSW) and in tort. The respondents were Cameron Crowley and Eleanor Crowley.

The primary legal issues before the Court of Appeal were whether a claim for breach of statutory warranty under the *Home Building Act 1989* was available against a co-owner spouse of the holder of an owner-builder permit, and whether such a claim was available in tort. Further, the Court considered whether the Tribunal had jurisdiction to determine the claim, and whether an order for substituted service, made at the husband's business address, was effective against both the husband and wife, and if such an order resulted in procedural unfairness.

The Court of Appeal determined that the claim under the *Home Building Act 1989* was not available against the co-owner spouse. The Court also found that the order for substituted service was not effective against the wife, Eleanor Crowley, as it did not provide her with a sufficient opportunity to resist the proceedings in the Tribunal, thereby resulting in a denial of procedural fairness. Consequently, the judgment against Eleanor Crowley was set aside. The Court also addressed an application for leave to appeal by Clifford Atkinson and a cross-appeal by Lisa Anne Atkinson, refusing leave for the former and dismissing the latter.

Orders

Orders of the court

(1) Direct that the proceedings brought by Clifford Atkinson be reframed so that the first and second respondents are Cameron Crowley and Eleanor Crowley.

(2) Refuse Clifford Atkinson leave to appeal against the judgment of Smart AJ in the Common Law Division of 11 May 2010.

(3) Order the applicant, Clifford Atkinson, to pay the costs of Cameron Crowley and Eleanor Crowley on the usual basis, and the costs of the Tribunal on a submitting basis.

(4) Dismiss the application of Lisa Anne Atkinson for leave to cross-appeal against the judgment of Smart AJ delivered on 11 May 2010.

(5) Order Lisa Anne Atkinson to pay the costs of Cameron Crowley and Eleanor Crowley of her leave application on the usual basis, and the costs of the Tribunal on a submitting basis.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

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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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