Bicopolous v Oxford Concrete P/L
[2004] NSWSC 1021
•3 November 2004
CITATION: Bicopolous & Anor v Oxford Concrete P/L [2004] NSWSC 1021 HEARING DATE(S): 26 October 2004 JUDGMENT DATE:
3 November 2004JURISDICTION:
Common Law - Administrative Law ListJUDGMENT OF: Master Harrison DECISION: (1) The appeal is dismissed; (2) The decision of Tribunal Member Mr W J Tearle made on 24 November 2003 is affirmed; (3) The amended summons is dismissed; (4) The plaintiffs are to pay the defendant's costs as agreed or assessed. CATCHWORDS: Appeal decision of CTTT LEGISLATION CITED: Consumer, Trader & Tenancy Act 2001 (NSW) - s 67 CASES CITED: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
McPhee v S Bennett Ltd (1935) 52 WN (NSW) 8PARTIES :
Bill Bicopolous and Vicki Bicopolous
(Plaintiffs)Oxford Concrete Pty Ltd
CTTT
(First Plaintiff)
(Second Defendant)
FILE NUMBER(S): SC 30021/2004 COUNSEL: Mr W Carney
Ms M Dolenec
(Plaintiffs)
(First Defendant)SOLICITORS: Ms Caroline Younis,
CK Lawyers
(Plaintiffs)Mr Angelo D'Angelo,
Submitting Appearance
D'Angelo Solicitors
(First Defendant)
(Secopnd Defendant)
LOWER COURTJURISDICTION: Consumer Trader and Tenancy Tribunal of NSW LOWER COURT FILE NUMBER(S): HB 01/76139; HB 01/82786 LOWER COURT
JUDICIAL OFFICER :Tribunal Member Tearle
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONMASTER HARRISON
WEDNESDAY, 2 NOVEMBER 2004
JUDGMENT (Appeal decision of CTTT)30021/2004 - BILL BICOPOLOUS & ANOR v
OXFORD CONCRETE PTY LTD
1 MASTER: By amended summons filed 20 July 2004 the plaintiffs, pursuant to s 67 of the Consumer, Trader & Tenancy Act 2001 (NSW) (the Act) claim: firstly, an order granting leave to appeal from the decision of Tribunal Member Mr W J Tearle of the Consumer, Trader and Tenancy Tribunal (CTTT) made against them on 24 November 2003; secondly, a declaration that the plaintiffs were not afforded procedural fairness to which they are entitled; thirdly, that the conclave of experts was not properly convened in accordance with the guidelines published by the CTTT in that there was no convener of the conclave who was appropriately qualified and appointed by the Tribunal; fourthly, that the second defendant erred in its findings in paragraph 124 and the finding were not supported by any evidence; and fifthly, the second defendant erred in its finding for monetary compensation in paragraphs in 41, 63, 69, 74, 78 and the findings were not supported by any evidence. At the hearing of this appeal, the plaintiff sought to amend the amended summons such that this matter be remitted to the CTTT for determination according to law.
2 The plaintiffs are Bill Bicopolous and Vicki Bicopolous. The first defendant is Oxford Concrete Pty Ltd. The second defendant is the CTTT. The plaintiffs relied on the affidavits of Caroline Younis sworn 15 March 2004 and 23 June 2004. Both Oxford Concrete and the CTTT have filed submitting appearances. For convenience in this judgment I shall refer to the parties by name.
3 Section 67 of 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. 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.
Background
4 In mid June 2000 Oxford Concrete, pursuant to a contract for building works, commenced work on the plaintiffs’ home at Sylvania. The agreed price for the building works as per the contract was $100,000.00 inclusive of goods and services tax. Oxford Concrete disputed that this price included goods and services tax. The price of the building works including variations was $118,281.00. The building works were completed in mid November 2000. Both parties filed applications in the CTTT. Minor rectification work was carried out in late November and December 2000. On 24 February, 22, 23, 24 May and 14 July 2003 the matter was listed for hearing and heard in the CTTT before Tribunal Member Mr W J Tearle. On 24 November 2003 the Tribunal Member made an order that “Bill Bicopolous and Vicki Bicopolous jointly and severally to pay Oxford Concrete Pty Ltd the sum of fifty-seven thousand two hundred and twenty-eight dollars and six cents ($57,228.06) on or before 18 December 2003”. On 25 February 2004 the Tribunal Member ordered the plaintiffs to pay Oxford Concrete’s costs of the proceedings on a party and party basis until 24 February 2003 and thereafter on an indemnity basis.
Reasons for the decision
5 The Bicopolous’ challenged all decisions made on quantum on the basis that they were errors of law. Oxford submitted that the challenges the plaintiffs make against the decision of the Tribunal Member are challenges to findings of fact made by the Member that cannot be the subject of an appeal.
6 In Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 the Court of Appeal considered a phrase in the Workers Compensation Act 1926, which only permitted an appeal on a “point of law” rather than a “matter of law”. Glass JA said:
- To say of a finding that it is perverse, that it is contrary to the overwhelming weight of (1985) 4 NSWLR 139 at 156 the evidence, that it is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made it, is to say the same thing in different ways. Upon proof that the finding of a jury is vitiated in this way, it will be set aside because it is wrong in fact. Since the Act does not allow this Court to correct errors of fact, any argument that the finding of a Workers' Compensation Commission judge is vitiated in the same way discloses no error of law and will not constitute a valid ground of appeal. It is also pointless to submit that the reasoning by which the court arrived at a finding of fact was demonstrably unsound as this would not amount to an error of law: R v District Court of the Metropolitan District Holden at Sydney; Ex parte White (1966) 116 CLR 644 at 654.”
7 Further in McPhee v S Bennett Ltd (1935) 52 WN (NSW) 8 at 9 Jordan CJ stated:
- "The question whether there is any evidence of a particular fact is also a question of law: ... But if there is evidence of the fact, the question whether that evidence ought to be accepted in whole or in part, or ought to be accepted as sufficient to establish the fact, is itself a question of fact and not a question of law, unless, of course, there is some law which provides that the particular evidence, when given, is to be taken to establish the fact. If a tribunal which has exclusive jurisdiction to determine facts decides that it does not accept the evidence tendered as establishing a particular fact, its decision, apart from the exceptional case which I have just mentioned, is conclusive…. There is no rule of law that such a tribunal must believe the evidence, because it is all one way. It can accept all, or some, or none of it. “
The Tribunal Member’s reasons
8 The Tribunal Member received a joint experts’ report in addition to the experts’ reports of Mr Andrew Phillips of Phillips Building Consultants & Inspectors Pty Ltd, Mr Owen O’Brien of Jones Nicholson Pty Ltd, Mr David Mahaffey of Mahaffey Associates Pty Ltd and Mr Alan Browne of Tyrrells Property Inspections. Mr Browne was the only expert who inspected the property. However, he was not available for cross-examination although requests were made by Oxford to this end. Mr Phillips was the only expert that provided costing for rectification work. The Tribunal Member structured his reasons for decision by reviewing the parties’ evidence in the following order. The information of the contract, the first and second pours of concrete the alleged defects in the work of Oxford, the alleged wrongful termination of the contract and the claim by Oxford for payment. The Tribunal Member decided some matters in favour of the Bicopolous’ and some in favour of Oxford.
The defective work claim
Item 1 – Fixing rendering of stairs – paras 41 to 44
9 Tribunal Member assessed the amount by accepting the quoted amount of Mr Phillips. The Bicopolous’ submitted that it did not make any allowance for profit margin and travel to the site. According to the Bicopolous’, Mr Phillips’ estimation could not offer a reasonable basis of compensation and the Tribunal Member palpably misused his advantage in relying upon Mr Phillips’ evidence. Mr Phillips gave evidence that a profit margin could be between 10% to 45%. Oxford submitted that preferring the evidence of one witness to another is not an error of law but rather a question of fact.
10 At paragraph 41 the Tribunal Member stated:
- “41. Mr and Mrs Bicopolous have claimed $1,200 for fixing and rendering the stairs, and rely in particular on an invoice for that amount from Mr Kurtuma. The invoice from Mr Kurtuma lacks detail. The invoice itself is for $2,300.00 for three items, and a claim for $2,300.00 appears on the Scott Schedule. It emerged at the hearing that one of the three items on that invoice was not related to issues before the Tribunal.”
11 The Tribunal Member made a factual finding that the amount of rectification work was $219.44. It was open to the Tribunal Member to accept the estimate put forward by Mr Phillips.
Item 2 – Cutting of risers – paras 45 and 46
12 The Bicopolous’ submitted that the amount of $1,350.00 as claimed to cut the risers should have been allowed as the risers had differences of 50mm which is unacceptable and that the Tribunal Member misunderstood the experts and failed to award this amount. Additionally they submitted that the experts accepted that there were differences in the risers (t 23.5.04 62.46) and the Bicopolous’ had paid for the repairs (t 22/5/03 42.50). Oxford submitted that the Member was not satisfied that there was sufficient evidence to prove this claim and there is no error of law.
13 The Tribunal found:
- “Mr and Mrs Bicopolous have not provided sufficient evidence as to the extent of the necessary rectification work, or of the number of risers where the difference was 50mm or more. Accordingly the Tribunal finds that Mr and Mrs Bicopoulos have not shown, on the balance of probabilities, an entitlement to an allowance from Oxford Concrete Pty Ltd for this item of their cross-claim.”
14 It is my view that this finding was open to the Tribunal Member.
Item 3 - repairing cracks on roof – paras 47 to 49
15 The Bicopolous’ submitted that the Tribunal Member erred in the method of assessing quantum for this item because a liquid membrane cannot be applied piecemeal. The Bicopolous’ submitted that the correct approach was to allow the full amount claimed with a discount of 10% as the balcony is included in the plans for the balcony, which was only a minor area. However, the evidence from Mr Mahaffety (t 57, 58) was that this type of membrane always required two coats and that cracks in excess of 1mm needed to be filled with a flexible sealant prior to the application of the waterproof membrane because the membrane could cope with cracks under 1mm. The Tribunal Member assessed that 10% of the area needed filling with sealant. On this issue the Tribunal Member found the Bicopolous’ evidence as “considerably less than compelling”. There is no error of law.
Item 4 – cleaning the ceiling and removing debris
16 The Bicopolous’ submitted that on Mr Phillips’ evidence one day was needed to clean up at an hourly rate of $35.00 and that the Tribunal Member should have allowed $245.00. Oxford submitted that item 4 related to a claim by Mr Bicopoulos for his own labour in cleaning the ceiling and removing debris. However, there was evidence by Mr Romeo that by 20 December 2000 he had done most of the cleaning work.
17 The Tribunal found:
The Tribunal finds that Mr and Mrs Bicopoulos have not shown on the balance of probabilities an entitlement to the amount they claim for this cleaning work.”“the evidence on behalf of Mr and Mrs Bicopoulos gave little assistance to the Tribunal in assessing the need for, and in particular the cost of, any cleaning.
18 There is no error of law.
Other alleged errors of law
19 I have examined the other submissions raised by the Bicopoulos’ in relation to the repairs to the bedroom, three ceilings, scrabble concrete to windows, repair top floor column and slab edge and parapet wall, maintenance of balcony ceiling and correct roof fall and labour costs. I do not intend to set out the Tribunal Member’s findings for each of these matters in full. For each item there was evidence to support the Tribunal Member’s findings. There are no errors of law.
Liquidated damages
20 That leaves the claim by the Bicopoulos’ for liquidated damages, termination of the contract and Oxford’s claim for quantum meruit. The Bicopoulos’ submitted that it was a contractual issue, namely whether the “annexure” was part of the contract and that the Tribunal Member based his decision on the fact that Mr Anglo did not remember the annexure being initialled. The Bicopoulos’ submitted that the initials on the annexure are the same as that on the other pages of the contract, namely pages 6, 9 and 12 of the contract.
21 Firstly, to be entitled to claim liquidated damages, the Bicopoulos’ had to prove that the clause they relied upon formed part of the contract. If the clause did form part of the contract, the Bicopoulos’ had to satisfy the Tribunal Member that Oxford was guilty of delay in the building works. The entitlement to liquidated damages at the rate of $500.00 each day was contained in Annexure 1 of the Schedule (see J p 5).
22 The Tribunal Member summarised the evidence in this way:
“20. Mr J Romeo testified that he did not recall seeing the Scope of Subcontract Works document at the time he signed the contract. Mr J Romeo also testified that the document concerning liquidated damages was not presented to him when he signed the contract. Mr Romeo told the Tribunal that the document did not appear to bear his signature.
22. According to Mr and Mrs Bicopoulos, the contract was signed on 27 July 2000.”21. Mr A Pavone, a friend of Mr J Romeo, accompanied him when he visited Mr Bicopoulos’ office on 26 July 2000. Mr Pavone’s evidence was that he only saw the contract document itself. He claims not to have seen the other two documents before these proceedings commenced. He testified that he had no recollection of there being any loose pages at the time when the parties signed the contract.
23 The Tribunal Member preferred the evidence of John Romeo and Mr Anthony Pavone to that of the Bicopoulos’. He was entitled to do so. There is no error of law.
24 Next the Bicopoulos’ submitted that the contract was not wrongfully terminated as even after the letter from Chahoud and Associates, purporting to terminate the contract, Mr Romeo was on site attempting to rectify the underside of the roof slab in the under side of the roof slab in bedroom three (t 23.5.03, 23.33-24.5). The Bicopoulos’ submitted that it was at this stage when it was discovered that Mr Romeo was not remedying the exposed steel in accordance with Mr Phillip’s advice that he was ordered off the site. It was alleged that this was the repudiation of the contract by Oxford.
25 In relation to the termination of the contract, the Tribunal Member found that the Bicopoulos’ through their solicitor terminated the contract on 9 November 2000 and that the Bicopoulos’ did not allow Oxford 10 days to remedy any default, contrary to the notice provisions in clause 24 of the contract. These are findings of fact. There is no error of law.
Oxford’s claim for quantum meruit
26 The Bicopoulos’ also made a submission in relation to paragraph 124 that the Bicopoulos’ were aware that they were receiving a benefit to enable a “quantum meruit” claim to succeed and there was no evidence that this was the case. Further they submitted that they were unaware of any additional work taking place on their property. On day one Mr Bicopoulos was asked, “Did you receive a second invoice – a further invoice from Oxford Concrete on 6 November 2000, do you agree with that?” and he answered, “Yes.” (t 55.56-56.1).
27 At paragraph 124 of his reasons for decision the Tribunal Member held:
“The Tribunal finds that Mr and Mrs Bicopolous were aware of the additional work and materials that Oxford Concrete Pty Ltd proposed. Mr and Mrs Bicopolous agreed, and allowed this to continue. In these circumstances, Oxford Concrete Pty Ltd is entitled to a fair and reasonable sum for the work and materials it supplied. The Tribunal assesses this fair and reasonable sum as being $12,281.50 (including GST). Oxford Concrete Pty Ltd is entitled to recover that amount from Mr and Mrs Bicopolous under a claim in quantum meruit.”
28 There no error of law. Accordingly, the appeal is dismissed. The decision of Tribunal Member Mr W J Tearle made on 24 November 2003 is affirmed. Costs are discretionary. Normally costs follow the event. The Bicopoulos’ are to pay Oxford’s costs as agreed or assessed.
Orders
29 The court orders that:
(1) The appeal is dismissed.
(2) The decision of Tribunal Member Mr W J Tearle made on 24 November 2003 is affirmed.
(4) The plaintiffs are to pay the defendant’s costs as agreed or assessed.(3) The amended summons is dismissed.
Last Modified: 11/09/2004
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