Baltinos v Hodge

[2003] NSWSC 1163

CITATION:

Baltinos v Hodge & Ors [2003] NSWSC 1163

HEARING DATE(S):

4 December 2003

JUDGMENT DATE:

9 December 2003

JURISDICTION:

Comon Law - Administrative Law List

JUDGMENT OF:

Master Harrison

DECISION:

(1) The appeal is dismissed; (2) The plaintiff's amended summons dated 10 September 2003 is dismissed; (3) The decision of Senior Member Phillipps dated 5 June 2003 is affirmed; (4) The plaintiff is to pay the defendants' costs as agreed or assessed.

CATCHWORDS:

Appeal decision of CTTT, stay of proceedings - residential building claim

LEGISLATION CITED:

Consumer, Trader and Tenancy Tribunal Act 2001
Fair Trading Act 1987
Fair Trading Tribunal Act
Home Building Act 1989

CASES CITED:

Allen v Kerr & Anor (1995) Aust Torts Reports 81-354
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139

PARTIES :

Sia (Athanasia) Baltinos
(Plaintiff)

Robert J Hodge Constructions Pty Ltd (in liquidation)
(First Defendant)

Australand Holdings Limited
(Second defendant)

Consumer, Trader & Tenancy Tribunal
(Third Defendant)

FILE NUMBER(S):

SC 30058/2003

COUNSEL:

Mr T Davie
(First Defendant)

Mr D Ash
(Second Defendant)

SOLICITORS:

Mr S Baltinos
(Plaintiff)

Colin Biggers & Paisley
(First Defendant)

Minter Ellison
(Second Defendant)

Submiting Appearance
(Third Defendant)

LOWER COURTJURISDICTION:	CTTT
LOWER COURT FILE NUMBER(S):	HB03/21362 & HB02/70309
LOWER COURT JUDICIAL OFFICER :	Senior Member Phillipps

7


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

MASTER HARRISON

TUESDAY, 9 DECEMBER 2003

30058/03 - SIA BALTINOS v ROBERT J HODGE
CONSTRUCTIONS PTY LTD (IN LIQUIDATION)

& ORS

JUDGMENT (Appeal decision of CTTT, stay of proceedings – residential building claim)


1 MASTER : By amended summons filed 10 September 2003, the plaintiff seeks firstly, a stay of all proceedings against himself of the orders of Senior Member Phillipps numbered HB03/21362 and HB02/70309 dated 5 June 2003 of the Consumer, Trader and Tenancy Tribunal (CTTT); secondly, an order that the Senior Member was wrong in the issue of these orders as he failed in properly conducting the matter and did not take into consideration that the defendants were in breach of ss 9 and 7B of the Home Building Act 1989; thirdly, the Senior Member failed to consider “ misleading and deceptive conduct pursuant to ss 42(1), (2) and unconscionable conduct pursuant to s 43(1), (2)(a),(c),(d) and (e), s 4(a) also false representation pursuant to s 44 (e) (f) & (j) of the Fair Trading Act 1987; fourthly, the Member also failed to deduct $6,400.00 admitted as a typographical error by the first respondent. In oral submissions the plaintiff sought to add to the above order by seeking to have the contract declared void ab initio and damages in the sum of $125,781.53 (as at 1 October 2003). In short the plaintiff, in oral submissions, asserted that the “Tribunal Member had been conned”. The List Judge referred this matter to a Master for hearing.

2 Mr Baltinos represented his wife during this appeal. Sia Baltinos appeared in Court and to her husband representing her. Mr Baltinos was most articulate. The plaintiff relied on her affidavit of 1 July 2003 and the affidavit of Solon Baltinos sworn 23 September 2003. The first defendant is Robert J Hodge Constructions Pty Limited (in Liq) who was the builder. The second defendant is Australand Holdings Ltd. The third defendant is the CTTT. The CTTT has filed a submitting appearance.

3 It is not clear when the application was filed before the Tribunal. Section 60 of the Fair Trading Tribunal Act ( FTT Act ) provides that relief can be granted by way of a judgment or order in the nature of prohibition, mandamus, certiorari, and a declaratory judgment or an injunction if, in relation to the hearing or declaration of a matter where the Tribunal gave a ruling as to its jurisdiction, it was in error (s 60(2)) or a party had been denied procedural fairness. The FTT Act has been repealed and replaced by the CTTT Act . However, Sch 6 cl 6 of the CTTT Act makes provision for proceedings in the former Tribunal, which were instituted before 25 February 2002 to be continued and determined as if the CTTT Act had not been enacted. The legislation specifically includes any proceedings that are the subject of an appeal to the Supreme Court. As the plaintiff’s claim was originally filed in the Fair Trading Tribunal on 13 August 2001, the FTT Act is to apply to these proceedings. In any event, both Acts contain similar provisions.

4 Section 67 of the Consumer, Trader and Tenancy Tribunal Act 2001 (the Act) allows for an appeal to be made to this court on a question of law. The onus lies on the plaintiff to demonstrate that there has been an error of law. What is a question of law (as opposed to a question of fact) was considered, inter alia, in Allen v Kerr & Anor (1995) Aust Torts Reports 81-354 and Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-156.

5 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.

6 By way of background, the plaintiff and her husband, Mr Solon Baltinos, inspected an exhibition home in Kellyville marketed by the second defendant. They already had a DA approval but they wanted a big reputable company to build their home. According to the affidavit of Mr Baltinos, he and the plaintiff accepted a quotation of $132,800.00 for the “Marsden 251 Classic with spa” from the second defendant which they intended to have built on a block of land they owned at Concord.

7 In the CTTT proceedings, Senior Member Phillips found that the plaintiff and her husband entered into a contract with the first defendant for the construction of their home on 29 November 2000. Council issued a construction certificate on 12 April 2001. The start of the contract period pursuant to cl 8 of the contract was 10 May 2001. The contract period expired on 22 November 2001. Senior Member Phillips was satisfied that practical completion was deemed to have occurred on the service of a notice of practical completion dated 30 October 2001. No response was made by the plaintiff and her husband to this. Work continued after practical completion until early December 2000 when Mr Baltinos expelled and locked out the builder from the site.

8 The plaintiff and her husband complained that the first defendant fraudulently boosted the contract price. They allege also that there was a delay of fourteen months in the construction of the house and that there were a number of instances of work done that was defective and/or incomplete. Mr Baltinos made wide ranging submissions to this Court, including that there was a “grand scale fraud”. Some of those allegations are referred to by the Tribunal Member in his judgment. It is difficult to define with any precision what error of law or denial of procedural fairness is alleged. Most of the submissions made by Mr Baltinos amounted to a reassessment of the evidence presented before the Tribunal Member and, in particular, detailed analysis of documents marked Ex X1 and X2 (aff 23 September 2003). According to Mr Baltinos, it is impossible to make a mistake in the realm of $19,000.00 and as a result the first defendant owes the plaintiff $23,000.00. I have read the judgment of Senior Member Phillips carefully. The reasons of the Senior Member contained detailed examination of the items in dispute in documents “X to X2” that the plaintiff put into issue. It is not necessary to reproduce that analysis here.

9 Senior Member Phillips, [at p 9] of his reasons stated:

“The cross-claim against the builder was made, as far as I can ascertain: from the confused and often unintelligible submissions of the, homeowner for defective work and for delay.

Leaving aside the allegations of conspiracy, etc, the cross-claim against the builder sought compensation for a number of alleged wrongs.

The first was that in the period leading up to the execution, of, the contract the builder wrongly "boosted" (to use the term adopted by Mr Baltinos) the price as quoted from time to time, and as a result the contract price was higher than had originally been envisaged. The short answer to this contention is that the applicant signed the contract with the contract price clearly displayed. It is, not unusual for pre-contractual negotiations to result in changes in the originally quoted price, and it is not unusual or indeed wrong for the proposed price to increase as negotiations progress. There was some suggestion that the contract was provided to the applicant only at the time of signing, but I am not satisfied that this was the case. I accept the evidence of Mr Hodge that the (sic) If I am wrong, although the applicant says that she was busy in her coffee shop at the time she signed the contract, there is no evidence of unfair pressure and no evidence that Ms Baltinos was not capable of understanding the document that she signed.

The cross-claim includes costs attributable to alleged delay in the building of the house. The "contract period" was 28 weeks. The contract was executed on 29 November 2000. Council issued a construction certificate, before which work could not commence, on 12 April 2001. The start of the contract period pursuant to c18 of the contract was 20 working days after 12 April 2001; on 10 May 2001. The contract period therefore expired on 22 November 2001. Practical completion was deemed to have occurred on service of a notice of practical completion dated 30 October 2001, to which no response was made.

There was no delay.

The homeowner claimed compensation for defective and incomplete work. The uncontradicted evidence of Mr Hodge was that the builder had been ready willing and able to complete and rectify defects. The homeowner's claims were based on a report by Mr Strachan, whose qualifications were only stated as "HIA Consultant. A request was made that Mr Strachan be available for cross-examination, but he did not appear. Little use can, in consequence, be made of the report, but for the fact that many of the alleged defects, which were not generally major, were agreed in a letter sent by the builder to the homeowner, and were either remedied or in the process of being remedied when the homeowner expelled the builder from the site.

It follows that the homeowner had failed to mitigate his loss by preventing the builder from completing and rectifying the work and by refusing to utilise the "defects liability period" provided by the contract, and cannot be, in consequence, compensated. A report by Mr Michael, of Garry Michael design indicate (sic) that many of the defects were completed or in the process of being completed on 5 December 2001. A further report dated 30 May 2003 indicates that the homeowner failed or refused to provide assistance in relation to some further defects. Mr Michael's qualifications in the field of architecture from 1981 to the present were set out in his report of 24 April 2003 and I accept that he is qualified to opine on the completeness and
workmanship of building- works.

In summary, although there are some defective and, incomplete aspects of the works, they remain defective and incomplete because of the actions of the homeowner, and I decline to order compensation.“
10 In respect of the plaintiff’s claim against the second defendant Senior Member Phillipps said at 6-9 of his decision:


“Much of the grievance allegedly felt by the homeowner arose from the involvement in the pre-contractual period of a company called Australand Holdings Pty Ltd ("Australand"). My perusal of the documents satisfied me that the relationship between Australand and the builder in the present cases was that Australand marketed a number of housing designs to the public. If a consumer wanted an Australand design to be built, they were referred to a builder nominated by Australand, who licensed the design to that builder for a fee.

There was no credible evidence put before me that would suggest, even on a prima facie basis, that Australand was involved in the building of the house, or of the contracting to build the house. Although it is clear that Australand, made representations about its designs, similarly there is nothing in the evidence put before me that suggests that Australand made any representations about the quality of the building works.
The argument, shortly put, by the homeowner is that Australand and the builder were in an ill-defined conspiracy to defraud and impoverish the homeowners, and presumably other homeowners. The behaviour of Australand and of the builder is referred to, inter alia, as a "two party secret agreement a "bogus agreement a "crude way ... to circumvent the laws of this State" a "lie", a "public trap" "lies, delays dishonest and fraudulent behaviour" and by various other derogatory epithets. The homeowner has already made this allegation, which has been dealt with in some particularity in a is (sic) issue was previously dealt with in a Tribunal decision made by another member; decision HB 02/27652.”


11 The Senior Member subsequently also found that such claims of a relationship between the first and second defendants had already been considered and rejected by another Member in the proceedings he referred to. The plaintiff’s claims under ss 7B and 9 of the Home Building Act were raised and considered by the Senior Member and in the previous proceedings.

12 The Senior Member carefully considered the plaintiff’s claims and reached his findings on the basis of the evidence before him. He was entitled to do so. There is no error of law, nor was the plaintiff denied procedural fairness. The CTTT proceedings have been concluded and there have been no grounds advanced by Mr Baltinos to warrant the granting of a stay of proceedings. The appeal is dismissed. The decision of Senior Member Phillips dated 5 June 2003 is affirmed. The amended summons is dismissed.

13 Costs are discretionary. Normally costs follow the event. The plaintiff is to pay the defendants’ costs as agreed or assessed.

14 The Court orders that:


(1) The appeal is dismissed.

(2) The plaintiff’s amended summons dated 10 September 2003 is dismissed.

(3) The decision of Senior Member Phillipps dated 5 June 2003 is affirmed.

(4) The plaintiff is to pay the defendants’ costs as agreed or assessed.
**********

Last Modified: 12/11/2003