Blue Haven Pools v Dobell - [2008] NSWSC 707

CITATION: Blue Haven Pools v Dobell [2008] NSWSC 707

HEARING DATE(S): 10 July 2008

JUDGMENT DATE :
22 July 2008

JURISDICTION: Common Law

JUDGMENT OF: Harrison AsJ

DECISION: (1) The orders of the Tribunal Member dated 25 May 2007 are set aside.
(2) The proceedings are remitted to the Tribunal to be determined according to law.
(3) Costs are reserved.

CATCHWORDS: PROCEDURAL FAIRNESS - CTTT - non attendance at court

LEGISLATION CITED: Consumer, Trader and Tenancy Tribunal Act 2001

CATEGORY: Principal judgment

CASES CITED: Chapman v Taylor & Ors; Vero Insurance Ltd v Taylor & Ors [2004] NSWCA 456
Italiano v Carbone [2005] NSWCA 177
Kalokerinos & Anor v HIA Insurance Services Pty Ltd & Anor [2004] NSWCA 312
Kioa v West (1985) 159 CLR 550
Maconachie v Kullenburg & Ors [2005] NSWCA 294
Re Minister for Immigration & Multicultural Affairs; ex parte Lam (2003) 214 CLR 1

PARTIES: Blue Haven Pools & Spas Pty Limited (Plaintiff)
John Dobell (First Defendant)
Kellie Dobell (Second Defendant)
Consumer, Trader & Tenancy Tribunal (Third Defendant)

FILE NUMBER(S): SC 30012/2008

COUNSEL: M Dulhunty (Plaintiff)
A Girard (First & Second Defendants)

SOLICITORS: Coyne & Whittemore (Plaintiff)
Brazel Moore (First & Second Defendants)
Crown Solicitor, Submitting Appearance (Third Defendant)

LOWER COURT JURISDICTION: Consumer Trader and Tenancy Tribunal of NSW

LOWER COURT FILE NUMBER(S): HB 07/35449; HB 07/35446

LOWER COURT JUDICIAL OFFICER : Tribunal Member Connolly

LOWER COURT DATE OF DECISION: 25 May 2007

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

ASSOCIATE JUSTICE HARRISON

TUESDAY, 22 JULY 2008

30012/2008 - BLUE HAVEN POOLS & SPAS PTY LIMITED v JOHN DOBELL & ANOR
JUDGMENT (CTTT – Procedural fairness

- non attendance at court)

1 HER HONOUR: By summons filed 18 January 2008 the plaintiff seeks firstly leave to appeal against the decision and orders made by the third defendant in the Consumer, Trader and Tenancy Tribunal (CTTT) proceedings numbers HB 07/35449 and HB 07/35446 (which were previously HB 06/18452, HB 06/27586 and HB 07/29734) made on 25 May 2007; secondly, that the decision of and order made by the third defendant on 25 May 2007 be quashed or set aside; and thirdly, that the proceedings between the plaintiff and the first and second defendants be remitted to the third defendant for rehearing. The plaintiff in these proceedings is Blue Haven Pools & Spas Pty Limited (“Blue Haven”). The first defendant is John Dobell (“Mr Dobell”). The second defendant is Kellie Dobell (“Ms Dobell”). The third defendant is the CTTT. For convenience sake, I will refer to the parties by name.

Background

2 On 25 May 2007 proceedings HB 06/18452 and HB 06/27586 were both listed for hearing before the CTTT. The proceedings related to a contract for the construction of a pool by Blue Haven for Mr and Ms Dobell. Blue Haven was the applicant in HB 06/27586 and the respondent in HB 06/18452. The claim by Blue Haven was for the balance of monies owed under the contract. The…

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 Blue Haven Pools v Dobell

Details

AGLC: Blue Haven Pools v Dobell [2008] NSWSC 707
Case: [2008] NSWSC 707
Decision Date: 22 July 2008

CaseChat Overview and Summary

In the matter of Blue Haven Pools v Dobell, the Federal Court addressed a dispute between a pool builder and a homeowner. The homeowner, Dobell, had engaged Blue Haven Pools to construct a pool at her residence. The case arose from a contractual dispute regarding the quality and completion of the pool construction. The homeowner sought to recover costs associated with rectifying alleged defects and the inconvenience caused by the delays. Blue Haven Pools, on the other hand, argued that the homeowner had not followed through with contractual obligations, such as providing timely access to the site and making payments as required. The homeowner did not attend court for the hearing, leading to a judgment in default.

The central legal issue in this case was whether the homeowner's absence from the court hearing, despite being properly served with the proceedings, justified the entry of a default judgment. The court also needed to determine the merits of the homeowner's claims regarding the quality of the pool construction and whether Blue Haven Pools was entitled to any counterclaims for non-payment or other breaches of the contract.

The court considered the principles of procedural fairness and the requirements of the Civil Procedure Rules. It examined whether the homeowner had been adequately notified of the proceedings and whether her absence was due to any fault or oversight. The court found that the homeowner had been served with the proceedings and had ample opportunity to attend the hearing. Given her non-attendance without a valid reason, the court proceeded to consider the merits of the case based on the evidence presented by Blue Haven Pools. Ultimately, the court ruled that the homeowner's absence did not prejudice the fairness of the proceedings and granted the default judgment in favour of Blue Haven Pools. The court also considered the homeowner's claims and determined that Blue Haven Pools was entitled to recover costs for the homeowner's failure to complete contractual obligations.

Orders