Beetson v Charnwood Constructions Pty Ltd - [2021] NSWCATCD 142

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Beetson v Charnwood Constructions Pty Ltd [2021] NSWCATCD 142
Hearing dates: On the papers
Date of orders: 11 October 2021
Decision date: 11 October 2021
Jurisdiction: Consumer and Commercial Division
Before: G Blake AM SC, Senior Member
Decision:
(1)   A hearing is dispensed with in relation to the application of the applicants to vacate the hearing fixed for 25 and 26 October 2021 and to transfer the proceedings to the District Court (the transfer application).
(2)   The transfer application is dismissed.
(3)   The second respondent is to file and serve any costs application, including submissions and any evidence in support, within 14 days of the date of the orders in these reasons for decision.
(4)   The applicants are to file and serve any submissions and evidence in response within 14 days thereafter.
(5)   The second respondent is to file any submissions in reply within 14 days after receipt of the applicants’ submissions and evidence.
(6) Any submissions are to include submissions on the issue of whether an order should be made pursuant to s 50(2) of the NCAT Act, dispensing with a hearing of the costs application.

Catchwords:
CIVIL PROCEDURE — Jurisdiction — Transfers to and from other courts — Application to transfer proceedings to the District Court – Failure to make an application to claim an amount in excess of the jurisdictional limit of the Tribunal in respect of a building claim and/or to seek leave to rely on an expert report establishing the costs of the rectification works – Failure to explain why a consumer claim was made in excess of the jurisdictional limit of the Tribunal - Application dismissed

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW)
Australian Consumer Law (NSW)
Competition and Consumer Act 2010 (Cth)
Fair Trading Act 1987 (NSW)
Home Building Act 1989 (NSW)

Cases Cited:
Draybi Bros Pty Ltd v Bede Diab, John Maklouf, Jihad Dib, Mohammad Chahrouk Draybi Bros Pty Ltd v Bede Diab, John Maklouf, Jihad Dib [2014] NSWCATCD 67
Ideal Waterproofing Pty Ltd v Buildcorp Australia Pty Ltd & Ors [2004] NSWSC 765
Ralan (Culworth) Pty Ltd v Owners Corporation SP 83405 [2017] NSWCATAP 223
The Owners - Strata Plan No. 70030 v Decon Australia Pty Ltd [2014] NSWSC 347
The Owners Strata Plan 83405 v Ralan (Culworth) Pty Limited [2019] NSWSC 578

Texts Cited:
Nil

Category: Procedural rulings
Parties: Nina Beeston (First Applicant)
Kenneth Pitman (Second Applicant)
Charnwood Constructions Pty Ltd (First Respondent)
The Site Foreman (NSW) Pty Ltd (Second Respondent)
Representation: Solicitors:
Fielding Robinson Lawyers (First and Second Applicants)
Khoury Lawyers (Second Respondent)

File Number(s): HB 20/30968
Publication restriction: Nil

REASONS FOR DECISION

Overview

In these proceedings the first applicant, Nina Beeston (Ms Beeston), and the second applicant, Kenneth Pitman (Mr Pitman) (together referred to as the applicants), are seeking relief under the Home Building Act 1989 (NSW) (HB Act) against the first respondent, Charnwood Constructions Pty Ltd (Charnwood), and under the Australian Consumer Law (NSW) (ACL…

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 Beetson v Charnwood Constructions Pty Ltd

Details

AGLC: Beetson v Charnwood Constructions Pty Ltd [2021] NSWCATCD 142
Case: [2021] NSWCATCD 142
Decision Date: 11 October 2021

CaseChat Overview and Summary

In Beetson v Charnwood Constructions Pty Ltd, the applicants sought to transfer proceedings from the Civil Dispute Resolution Centre (CDRC) to the District Court. The applicants alleged that the respondents had engaged in defective building work, and they sought damages in excess of the jurisdictional limit of the CDRC. The court had to determine whether the application to transfer the proceedings was appropriate, given the jurisdictional issues raised by the applicants' claims.

The primary legal issue before the court was whether the applicants had correctly pursued their claim in the CDRC, given the amount they sought in damages exceeded the jurisdictional limit. Additionally, the court had to consider if the applicants had adequately explained why they initially made a consumer claim in excess of the Tribunal's jurisdictional limit. The applicants needed to demonstrate that the transfer was necessary and in the interests of justice.

The court found that the applicants had failed to make an application to claim the amount in excess of the jurisdictional limit of the Tribunal, nor had they sought leave to rely on an expert report establishing the costs of the rectification works. Furthermore, they did not explain why the consumer claim was made in excess of the jurisdictional limit of the Tribunal. As a result, the application to transfer the proceedings was dismissed. The court held that the applicants had not provided sufficient grounds for the transfer, and their failure to address the jurisdictional issues rendered the application inappropriate.

The court ordered that the applicants and respondents file and serve their respective submissions and evidence within specific timeframes, allowing for a hearing on the costs application if necessary. The court also left open the possibility of dispensing with a hearing of the costs application if appropriate.

Orders

Orders of the court

(1) A hearing is dispensed with in relation to the application of the applicants to vacate the hearing fixed for 25 and 26 October 2021 and to transfer the proceedings to the District Court (the transfer application).

(2) The transfer application is dismissed.

(3) The second respondent is to file and serve any costs application, including submissions and any evidence in support, within 14 days of the date of the orders in these reasons for decision.

(4) The applicants are to file and serve any submissions and evidence in response within 14 days thereafter.

(5) The second respondent is to file any submissions in reply within 14 days after receipt of the applicants’ submissions and evidence.

(6) Any submissions are to include submissions on the issue of whether an order should be made pursuant to s 50(2) of the NCAT Act, dispensing with a hearing of the costs application.

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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Medium Neutral Citation:	Beetson v Charnwood Constructions Pty Ltd [2021] NSWCATCD 142
Hearing dates:	On the papers
Date of orders:	11 October 2021
Decision date:	11 October 2021
Jurisdiction:	Consumer and Commercial Division
Before:	G Blake AM SC, Senior Member
Decision:	(1) A hearing is dispensed with in relation to the application of the applicants to vacate the hearing fixed for 25 and 26 October 2021 and to transfer the proceedings to the District Court (the transfer application). (2) The transfer application is dismissed. (3) The second respondent is to file and serve any costs application, including submissions and any evidence in support, within 14 days of the date of the orders in these reasons for decision. (4) The applicants are to file and serve any submissions and evidence in response within 14 days thereafter. (5) The second respondent is to file any submissions in reply within 14 days after receipt of the applicants’ submissions and evidence. (6) Any submissions are to include submissions on the issue of whether an order should be made pursuant to s 50(2) of the NCAT Act, dispensing with a hearing of the costs application.
Catchwords:	CIVIL PROCEDURE — Jurisdiction — Transfers to and from other courts — Application to transfer proceedings to the District Court – Failure to make an application to claim an amount in excess of the jurisdictional limit of the Tribunal in respect of a building claim and/or to seek leave to rely on an expert report establishing the costs of the rectification works – Failure to explain why a consumer claim was made in excess of the jurisdictional limit of the Tribunal - Application dismissed
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) Australian Consumer Law (NSW) Competition and Consumer Act 2010 (Cth) Fair Trading Act 1987 (NSW) Home Building Act 1989 (NSW)
Cases Cited:	Draybi Bros Pty Ltd v Bede Diab, John Maklouf, Jihad Dib, Mohammad Chahrouk Draybi Bros Pty Ltd v Bede Diab, John Maklouf, Jihad Dib [2014] NSWCATCD 67 Ideal Waterproofing Pty Ltd v Buildcorp Australia Pty Ltd & Ors [2004] NSWSC 765 Ralan (Culworth) Pty Ltd v Owners Corporation SP 83405 [2017] NSWCATAP 223 The Owners - Strata Plan No. 70030 v Decon Australia Pty Ltd [2014] NSWSC 347 The Owners Strata Plan 83405 v Ralan (Culworth) Pty Limited [2019] NSWSC 578
Texts Cited:	Nil
Category:	Procedural rulings
Parties:	Nina Beeston (First Applicant) Kenneth Pitman (Second Applicant) Charnwood Constructions Pty Ltd (First Respondent) The Site Foreman (NSW) Pty Ltd (Second Respondent)
Representation:	Solicitors: Fielding Robinson Lawyers (First and Second Applicants) Khoury Lawyers (Second Respondent)
File Number(s):	HB 20/30968
Publication restriction:	Nil