Benjamin & Benjamin v Geneville Constructions Pty Ltd - [2022] NSWSC 982

Supreme Court

New South Wales

Medium Neutral Citation: Benjamin & Benjamin v Geneville Constructions Pty Ltd [2022] NSWSC 982
Hearing dates: 31 March 2022
Date of orders: 27 July 2022
Decision date: 27 July 2022
Jurisdiction: Common Law
Before: Wilson J
Decision:
(1) The Summons filed on 16 August 2021 is dismissed.
(2) The plaintiffs are to pay the first defendant’s costs of these proceedings.

Catchwords:
APPEAL – appeal from Civil and Administrative Tribunal to Supreme Court – judicial review – home building – pre-contractual work – scope of contract compensation mechanism – interpretation and construction of clause 14.7 in contract – no jurisdictional error – no substantial miscarriage of justice – supervisory jurisdiction not exercised – summons dismissed – plaintiffs to pay defendant’s cost of proceedings

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW)
Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Benjamin v Geneville Constructions Pty Ltd; Geneville Constructions Pty Ltd v Benjamin [2021] NSWCATAP 138
Geneville Constructions Pty Ltd v Benjamin [2019] NSWCATCD
Makowska v St George Community Housing Pty Ltd [2021] NSWSC 287
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Re Carey; Ex parte Exclude Holdings Pty Ltd (2006) 32 WAR 501; [2006] WASCA 219

Category: Procedural rulings
Parties: Edmund Benjamin and Sarah Benjamin
Geneville Constructions Pty Ltd
Representation:
Counsel:
A Moutasallem (Plaintiff)
M Newton (Defendant)
Solicitors:
Millennium Lawyers (Plaintiff)
Aronstan Law (Defendant)

File Number(s): 2021/233597
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Appeal Panel
NSW Civil and Administrative Tribunal

Jurisdiction:

Consumer and Commercial Division

Citation:

[2021] NSWCATAP 138

Date of Decision:

18 May 2021

Before:

K Rosser, Principal Member
G K Burton SC, Senior Member

File Number(s):

2020/0037097

Judgment

HER HONOUR: By summons filed on 16 August 2021 the first and second plaintiffs, Edmund Benjamin and Sarah Benjamin respectively, seek judicial review of, and leave to appeal from, a decision of the Appeal Panel of the Civil and Administrative Tribunal New South Wales (“the Appeal Panel of NCAT”). The proceedings are brought pursuant to s 69 of the Supreme Court Act 1970 (NSW) and s 83(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (“the NCAT Act”), respectively. The plaintiffs ask that the Court quash the decision made by the Appeal Panel on 18 May 2021: Benjamin v Geneville Constructions Pty Ltd; Geneville Constructions Pty Ltd v Benjamin [2021] NSWCATAP 138 (“the decision”).
Because of the multiplicity of proceedings in this matter, and the possibility of confusion inherent in the terminology of plaintiff and defendant, where each party has fulfilled each role at some point in the overall history of the matter, I propose to refer to the parties by name in this judgment, that is, as “Mr and Mrs Benjamin”, and “Geneville” or “the builder”.
The second defendant in the proceedings before this Court is NCAT, which has filed a submitting appearance.

The Background to the Proceedings

Mr and Mrs Benjamin are the owners…

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 Benjamin & Benjamin v Geneville Constructions Pty Ltd

Details

AGLC: Benjamin & Benjamin v Geneville Constructions Pty Ltd [2022] NSWSC 982
Case: [2022] NSWSC 982
Decision Date: 27 July 2022

CaseChat Overview and Summary

In the Supreme Court of Queensland, Benjamin & Benjamin appealed against a decision of the Civil and Administrative Tribunal (CAT) concerning a dispute with Geneville Constructions Pty Ltd, a building company. The plaintiffs, Benjamin & Benjamin, claimed additional costs for pre-contractual work performed on a residential construction project. The central issue was the interpretation and application of clause 14.7 in the contract, which deals with the compensation mechanism for changes in scope of work. The tribunal had ruled in favour of Geneville, concluding that the clause did not support the plaintiffs' claim for additional compensation.

The court was required to determine whether the tribunal made any jurisdictional error in its interpretation of the contract. The plaintiffs argued that the tribunal misinterpreted clause 14.7 and that this error led to a substantial miscarriage of justice. The court examined the terms of the contract and the tribunal's reasoning, assessing whether the tribunal's interpretation was reasonable and whether there was any error in law. The court found that the tribunal correctly interpreted the contract and that there was no jurisdictional error or substantial miscarriage of justice. Consequently, the court declined to exercise its supervisory jurisdiction.

The court dismissed the appeal, confirming the tribunal's decision that clause 14.7 did not entitle the plaintiffs to additional compensation for the pre-contractual work. The plaintiffs were ordered to pay Geneville Constructions Pty Ltd’s costs of the proceedings, as the appeal was without merit. The ruling underscores the importance of clearly defined contractual terms and the tribunal's role in interpreting those terms in the absence of evident error.

Orders