Brimelow v Sharpe

[2012] NSWCA 345

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Brimelow v Sharpe [2012] NSWCA 345

Hearing dates:

2 October 2012

Decision date:

25 October 2012

Before:

Macfarlan JA at [1];
Meagher JA at [37];
Tobias AJA at [48]

Decision:

The plaintiff's summons is dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

ADMINISTRATIVE LAW - judicial review - appeal to District Court from Consumer, Trader and Tenancy Tribunal ('CTTT') - application for relief by way of certiorari under s 69 of Supreme Court Act 1970 - whether District Court made jurisdictional error or error of law on face of record - whether District Court entitled to find that CTTT decision on question of law justifiable by different legal analysis to that adopted by CTTT - whether District Court should have remitted proceedings to CTTT for redetermination - whether District Court erred in making impermissible factual findings - whether discretion to refuse grant of certiorari relief

CONTRACT - breach of contract - agreement to carry out construction and renovation works at family home - whether installation of solar panels and water tank formed part of contract - whether inclusion of items within plans conferred obligation to install them despite their omission from builder's quotation - whether alleged oral conversation between parties was capable of supporting appellant's contention

Legislation Cited:

Consumer, Trader and Tenancy Tribunal Act 2001
District Court Act 1973
Home Building Act 1989
Supreme Court Act 1970

Cases Cited:

Edyp v Brazbuild Pty Ltd [2011] NSWCA 218
Fitzgerald v Director of Public Prosecutions (1991) 24 NSWLR 45
Garde v Dowd [2011] NSWCA 115
Muldoon v Church of England Children's Homes Burwood [2011] NSWCA 46; 80 NSWLR 282
Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390
Mann v Medical Practitioners Board of Victoria [2004] VSCA 148; 21 VAR 429
Murlan Consulting Pty Ltd v Ku-ring-gai Municipal Council [2009] NSWCA 300; 170 LGER 162
R v Commonwealth Court of Conciliation & Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389
R v Williams; ex parte Lewis [1992] 1 Qd R 643
Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; 209 CLR 372
Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82
Reimers v Health Care Complaints Commission [2012] NSWCA 317
Roach v B & W Steel Pty Ltd (1991) 23 NSWLR 110
Smith v Collings Homes Pty Ltd [2004] NSWCA 75
Solution 6 Holdings Ltd v Industrial Relations Commission of NSW [2004] NSWCA 200; 60 NSWLR 558
Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300; 71 NSWLR 230
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 81 ALJR 1190

Category:

Principal judgment

Parties:

Vicki Brimelow (Applicant)
Gregory Sharpe (Respondent)

Representation:

Counsel:
F Corsaro SC (Applicant)
F Salama (Respondent)
Solicitors:
Thomas Mitchell Solicitors (Applicant)
Moray & Agnew (Respondent)

File Number(s):

CA 2011/417467

 Decision under appeal 

Citation:

Vicki Brimelow v Gregory Sharpe

Date of Decision:

2011-09-02 00:00:00

Before:

Sidis DCJ

File Number(s):

DC 2010/390944

Judgment

1. MACFARLAN JA: This is an application for an order under s 69 of the Supreme Court Act 1970, by way of certiorari, quashing orders made by Sidis DCJ on 2 September 2011. These orders were made on an appeal to the District Court from a decision dated 19 October 2010 of the Consumer, Trader & Tenancy Tribunal ("CTTT"). An order remitting the proceedings to the District Court for redetermination is also sought.

1. The proceedings in the CTTT were brought by Ms Vicki Brimelow, the plaintiff in this Court, against Mr Gregory Sharpe, the first defendant in this Court, for damages for breach by Mr Sharpe of a contract under which he agreed to carry out construction and renovation works at Ms Brimelow's mother's home. The principal question in both this and the District Court was whether Mr Sharpe was contractually obliged to install solar panels and a water tank at the home. Ms Brimelow claims that he was because they were shown on plans supplied by her to Mr Sharpe. Mr Sharpe argues that he was not because they were not included in the work described in a written Quotation that he had provided to Ms Brimelow.

1. In early 2007 Ms Brimelow forwarded to Mr Sharpe plans relating to the proposed work and an undated letter requesting a quotation from him. The letter included the following:

"I am having solar energy back to the grid and have a Sydney based firm installing this system. Cost for this is $30,000. Also I wanted wide eaves as I plan to install water tanks down the track".

1. As suggested by Mr Sharpe, Ms Brimelow had the plans amended to provide fittings suitable for her disabled mother. Some weeks later, the amended plans, approved by the local council and apparently dated 17 April 2007 were forwarded by Ms Brimelow to Mr Sharpe who thereafter gave her a detailed quotation dated 16 May 2007 ("the Quotation"). The Quotation stated the offered price as $196,200 and included a heading "Scope of Works" under which were stated many details of the proposed work, including monetary allowances for individual bathroom fittings and an allowance of $7,000 for "Kitchen & PC Items". Both the original and amended plans showed solar panels on the roof and the latter showed a water tank, but these items were not mentioned in Mr Sharpe's Quotation.

1. Ms Brimelow's evidentiary statement before the CTTT stated that she had a conversation with Mr Sharpe concerning the solar panels, to the following effect:

"Vicki Brimelow: 'Greg, I believe that it would be preferable if the works were done under our contract. To arrange for another contractor to do the solar panels while you are still doing works will be difficult as the solar panels will have to be installed before the roof is installed.'

Greg Sharpe: 'That's fine. I don't know anyone in Newcastle who can install the panels though'".

1. It is apparent from the statement, when read with the CTTT's findings (Judgment pp 2 and 3), that this conversation occurred, if at all, at or about the time that Ms Brimelow provided the amended plans to Mr Sharpe and therefore prior to his provision of the Quotation to Ms Brimelow. Before the CTTT, Mr Sharpe denied that a conversation in these terms had occurred and said that after reviewing the amended plans he said to Ms Brimelow:

"I will not be doing any solar panels. I'm not qualified to install them myself and do not have any local contacts who do them. If you still want them installed, you will need to arrange them yourself".

To which she responded:

"I will look at doing them at a later time" (Affidavit of Mr Sharpe dated 10 August 2010 [14] and [15]).

1. After Ms Brimelow accepted the Quotation, the parties signed a form entitled "NSW Residential Building Contract for Renovations & Additions", with the apparent intent of complying with the Home Building Act 1989. The form of contract did not however identify the work to be performed. It stated that the contract price was $196,200, as in the Quotation, and defined the "building works" as:

"the building works to be carried out, completed and handed over to the owner in accordance with this contract as shown in the contract documents and including variations" (Clause 1.1).

1. The "contract documents" were in turn defined as "these general conditions, any special conditions, the plans, the specifications and other documents specified in Item 14 of Schedule 1". Item 14 stated that "[i]n addition to these general conditions, any special conditions, the plans and the specifications the following documents form part of this contract". No "following documents" were identified, nor was there any definition of the "plans" or "specifications". No plans were attached to the form of contract.

THE CTTT JUDGMENT

1. The CTTT concluded, by reference to a Scott Schedule that was in evidence, that after taking into account the economies of scale which would be achieved if required additional work were done by one builder, Mr Sharpe was bound to pay $9,500 to Ms Brimelow. The CTTT omitted to deal with certain items of that schedule.

1. As to Ms Brimelow's complaint that Mr Sharpe had not installed the solar panels and water tank shown on the amended plans provided to him, the Tribunal referred to Ms Brimelow's undated letter (see [3] above) and said:

"The solar panels

...

It was Mr Salama's [counsel for Mr Sharpe] case that this should be interpreted as placing the solar system outside the contract. Mr Coren [solicitor for Ms Brimelow] attempted to meet this objection on the basis that a second set of plans was brought into existence after the letter but before the contract was actually signed. Those amended plans continued to show the solar panels and the conclusion he drew from it all were that the solar panels must form part of the contract works. Mr Coren's argument was that the builder could only get around his obligations under the Act by raising some sort of estoppel in the face of the statute.

I have considered the matter carefully and I do not share Mr Coren's analysis. The letter of instructions cannot be dismissed as pre-contractual and having no effect on the rights and liabilities of the parties. A letter like that sets the ambit of the works to be undertaken. It might be overtaken by subsequent transactions between the parties, but there would have to be a frank alteration to the scope of works.

I find that the undated letter raises an estoppel by representation about a factual matter, namely the scope of works and specifically, that the solar panels are outside the project being negotiated with the builder. Applying ordinary meanings to its words and phrases, I interpret the letter as indicating that specialist outside contractors would be taking care of the solar installation. The only other way to interpret the letter, which would be of benefit to the homeowner, it would be to see it as indicating that a PC type of allowance should be made in the contract price for the solar electricity system. This would be in the order of the amount referred to in the letter being some $30,000.00. That is not the natural meaning conveyed by the letter and it does not seem to be the interpretation held by the parties at the time the contract was formed. I refer here to the evidence of Mr Spring, the electrical contractor. He was adamant that the solar installation was discussed with him when he inspected the job before starting work. On his account, he was left in no doubt that the solar system was to be done by others, if at all.

I am comfortably satisfied that the intention of the parties, objectively ascertained from the evidence, was that the solar panels did not form part of Mr Sharpe's contract.

Water Tanks

The problem here is similar but not identical to the solar system. The relevant part of the letter states:

'Also, I wanted wide eaves as I plan to install water tanks down the track'

Again the tanks, presumably to hold rain water collected from the roof, are visible on the plans and on this basis, the homeowner insists that they are part of the contract.

The general reasoning relating to the solar panels above is also applicable here and I find that the estoppel applies equally to the water tanks".

THE DISTRICT COURT JUDGMENT

1. Ms Brimelow appealed to the District Court from the CTTT's decision pursuant to s 67(1) of the Consumer, Trader and Tenancy Tribunal Act 2001 (the "CTTT Act"). In her judgment of 2 September 2011, Sidis DCJ rejected Ms Brimelow's contention that the CTTT was not entitled to take into account economies of scale in concluding, on the basis of the Scott Schedule, that Ms Brimelow was entitled to a payment of $9,500 from Mr Sharpe. However her Honour found that Ms Brimelow was entitled to an extra $476 by reason of the CTTT's inadvertent omission to consider Items 47, 49 and 50 of the Scott Schedule.

1. Her Honour then turned to Ms Brimelow's claims that Mr Sharpe should have installed the solar panels and water tank. The claims were quantified at $48,191 and $4,123 respectively.

1. Her Honour found that the CTTT erred in concluding that Ms Brimelow's undated letter gave rise to an "estoppel by representation", the relevant statement not being a representation of existing fact but a statement concerning Ms Brimelow's future intentions regarding the installation of solar panels and the water tank. This finding was not challenged in the proceedings in this Court. Her Honour then considered the contractual position concerning the installation of the solar panels and water tank. In essence, her Honour found that Mr Sharpe's Quotation formed part of the contract and defined the scope of the works he was obliged to undertake. As the Quotation made no reference to the solar panels or the water tank, her Honour concluded that Mr Sharpe was not contractually obliged to install them. As a result, she dismissed Ms Brimelow's appeal, save for awarding her the additional sum of $476 related to Scott Schedule items overlooked by the CTTT. Her Honour ordered Ms Brimelow to pay Mr Sharpe's costs of the appeal.

NATURE OF THE APPLICATION TO THIS COURT

1. An appeal does not lie to this Court under s 127 of the District Court Act 1973 from a decision, such as that of Sidis DCJ of 2 September 2011, given on an appeal from the CTTT under s 67 of the Consumer, Trader and Tenancy Tribunal Act 2001 (the "CTTT Act") as the District Court decision is not given "in an action" (see s 127(1) of the District Court Act and Muldoon v Church of England Children's Homes Burwood [2011] NSWCA 46; 80 NSWLR 282). However the Court has power under s 69 of the Supreme Court Act to make an order granting relief by way of certiorari. Such an order may be made where an inferior court, such as the District Court, has made a jurisdictional error or an error of law that is apparent on the face of its record (which includes its reasons for judgment: s 69(4)). The privative provision contained in s 176 of the District Court Act restricts this Court's powers under s 69 in relation to decisions of the District Court given in criminal proceedings (Garde v Dowd [2011] NSWCA 115 at [9] and [10]). However, as s 176 is contained in Part 4 of the District Court Act (dealing with that court's criminal jurisdiction) and has no counterpart in Part 3 (dealing with its civil jurisdiction) it does not apply to civil decisions and is therefore inapplicable in the present case.

GROUNDS OF MS BRIMELOW'S APPLICATION TO THIS COURT

1. At the hearing in this Court, senior counsel appearing for Ms Brimelow confirmed that the grounds upon which Ms Brimelow seeks a quashing order under s 69, and remission of the proceedings to the District Court, are those set out in her Amended Written Submissions ([1] - [6]). Those grounds, and my conclusions concerning them, are as follows:

GROUND 1: SIDIS DCJ ERRED IN LAW IN FINDING THAT THERE WAS NO CONTRACTUAL OBLIGATION OF THE DEFENDANT TO CONSTRUCT RESIDENTIAL WORKS PURSUANT TO THE PLANS DATED 17 APRIL 2007

GROUND 2: SIDIS DCJ ERRED IN LAW IN FINDING THAT THE STATUTORY WARRANTIES IMPLIED IN THE AGREEMENT DID NOT REQUIRE THE DEFENDANT TO CONSTRUCT WORKS IN ACCORDANCE WITH THE APPROVED PLANS DATED 17 APRIL 2007 [THE] SUBJECT OF THE RELEVANT DEVELOPMENT CONSENT

1. By Ground 6 (see [26] below), Ms Brimelow contends that, having found that the CTTT had erred in law (by incorrectly finding an "estoppel by representation") Sidis DCJ was not entitled to proceed to determine what constituted the contract between the parties and to construe it. Assuming however for the purpose of Grounds 1 and 2 that her Honour was entitled to so proceed, these grounds raise the question of whether her Honour's conclusions disclosed an error of law. Their relevance is to Ms Brimelow's contention that Mr Sharpe was obliged to install the solar panels and water tank because they were shown on the amended plans (of 17 April 2007).

1. Whether Mr Sharpe's Quotation formed part of the contract between the parties was a question of law because the CTTT had already made factual findings concerning its provision by Mr Sharpe to Ms Brimelow and their signature of a form of contract. All that remained was to construe the form of contract and the Quotation to determine what building works were provided for by the contract between the parties. Her Honour found that the works were not identified in the form of contract itself, with the result that recourse was required to the Quotation. Although not expressly stated, the effect of her Honour's decision was that for the purpose of ascertaining the work contracted to be done, Item 14 of Schedule 1 of the form of contract (see [8] above) required reference not only to the amended plans submitted by Ms Brimelow to Mr Sharpe but also to the Quotation which was to be regarded as constituting the "specifications" referred to in that Item. This reasoning was correct, and obviously so. Before this Court, senior counsel for Ms Brimelow had to concede that the Quotation formed part of the contract. As the word "specifications" was not defined in the form of contract, it bears its ordinary meaning which, relevantly, is "a detailed description setting forth the dimensions, materials, etc., for a proposed building, engineering work, or the like" (The Macquarie Dictionary, 5th ed (2009)).

1. Likewise her Honour's construction of the Quotation as not including installation of the solar panels and water tank within the scope of work to be performed under the contract was clearly correct. Senior counsel for Ms Brimelow was unable to advance to this Court any reasonably arguable submission to the contrary. The Quotation described the work to be performed under the contract. That work did not include solar panels or a water tank. The references in the plans to these items were explicable upon the basis that Ms Brimelow sought to obtain, at the one time, approval from the local council for all the work that was to be, or might be, done, whether by Mr Sharpe or another contractor. The Quotation identified what was to be done by Mr Sharpe.

1. A further question of law involved in her Honour's decision was whether the conversation described by Ms Brimelow (and denied by Mr Sharpe: see [5]-[6] above) was capable, if it occurred, of supporting a conclusion that the installation of the solar panels and water tank formed part of the contractual work. The effect of her Honour's reasoning, with which I agree, was that it could not, because at most the conversation contained a request that Mr Sharpe arrange for someone nominated by Ms Brimelow to install the solar panels for a price to be passed on to Ms Brimelow (Judgment [43]) and because the water tank was not mentioned in the conversation (Judgment [44]). A further reason why her Honour's conclusion concerning this conversation was correct is that, on Ms Brimelow's evidence and the facts as found by the CTTT, the conversation clearly preceded Mr Sharpe's Quotation and its subsequent acceptance (see [6] above). Any such conversation would therefore have been superseded by the Quotation and its acceptance by Ms Brimelow.

1. Ms Brimelow's reference in Ground 2 to the statutory warranties (under the Home Building Act) does not assist her because those warranties cannot apply to work (here the installation of solar panels and a water tank) that the builder has not performed or agreed to perform.

1. Finally, I add that although the CTTT's decision was expressed to be founded upon an estoppel by representation, it is strongly arguable that when the relevant part of the decision (see [10] above) is considered as a whole, the CTTT's finding, in substance, concerned the scope of Mr Sharpe's contractual obligations, and its conclusion could be sustained even if the erroneous finding that Ms Brimelow's letter gave rise to an estoppel by representation were disregarded. It is however unnecessary to reach a final view on this question.

1. For these reasons Grounds 1 and 2 should be rejected.

GROUND 3: SIDIS DCJ ERRED IN LAW IN PROVIDING FINDINGS ON ISSUES THAT DETERMINED THE APPEAL WHEN SUCH ISSUES WERE NOT IN CONTENTION BETWEEN THE PARTIES

1. The only sensible meaning that can be given to this ground is that it is a contention that her Honour's conclusions concerning Mr Sharpe's alleged obligations to install the solar panels and water tank did not constitute a determination of matters that were argued by the parties before her and that Ms Brimelow was thereby denied procedural fairness. However, as pointed out to counsel on more than one occasion during the hearing before this Court, Ms Brimelow did not adduce any evidence as to the submissions made to her Honour. As nothing in her Honour's judgment suggests that her conclusions travelled outside the parties' submissions, there is no basis for this ground and it must be rejected.

1. I note that on the hearing before this Court senior counsel for Ms Brimelow indicated that his client did not assert that she was denied procedural fairness. However, as the ground was not withdrawn, I have dealt with it according to its terms.

GROUND 4: SIDIS DCJ ERRED IN LAW IN MAKING AN ORDER FOR COSTS AGAINST THE PLAINTIFF WHEN THE PLAINTIFF WAS PARTIALLY SUCCESSFUL IN THE APPEAL PROCEEDINGS

1. It was well within her Honour's discretion to order Ms Brimelow to pay Mr Sharpe's costs of the appeal to the District Court notwithstanding that Ms Brimelow succeeded in obtaining an order for an additional payment of $476. The principal controversy before the District Court concerned the costs of installation of the solar panels and water tank (claimed by Ms Brimelow to total $52,314). Ms Brimelow failed on this issue. Moreover, as Mr Sharpe noted in his written submissions (without contradiction by Ms Brimelow) Ms Brimelow did not enquire, before the Notice of Appeal to the District Court was filed, whether Mr Sharpe would, as he subsequently did at the District Court hearing, concede the small claims overlooked by the CTTT.

GROUND 5: SIDIS DCJ ERRED IN LAW IN MAKING FINDINGS OF FACT INCLUDING THAT "THERE WERE NO PLANS AND SPECIFICATIONS ATTACHED TO THE CONTRACT AND NO MEANS WITHIN THE CONTRACT BY WHICH THEY COULD BE IDENTIFIED", WHEN HER HONOUR WAS UNABLE TO MAKE SUCH FINDINGS OF FACT UNDER S 67 OF THE CONSUMER, TRADER AND TENANCY TRIBUNAL ACT

GROUND 6: UPON FINDING THAT THERE WAS AN ERROR IN LAW MADE BY TRIBUNAL MEMBER SMITH [OF THE CTTT], HER HONOUR WAS REQUIRED TO EITHER MAKE ORDERS IN SUBSTITUTION OF THE ORDERS MADE BY MEMBER SMITH BY REFERENCE TO EXISTING FINDINGS OF FACT OR REMIT THE PROCEEDINGS FOR A REHEARING BY THE TRIBUNAL

1. Section 67 of CTTT Act is relevantly in the following terms:

"(1) If, in respect of any proceedings, the Tribunal decides a question with respect to a matter of law, a party in the proceedings who is dissatisfied with the decision may, subject to this section, appeal to the District Court against the decision.

...

(3) After deciding the question the subject of such an appeal, the District Court may, unless it affirms the decision of the Tribunal on the question:

(a) make such order in relation to the proceedings in which the question arose as, in its opinion, should have been made by the Tribunal, or

(b) remit its decision on the question to the Tribunal and order a rehearing of the proceedings by the Tribunal."

1. Ms Brimelow's Notice of Appeal to the District Court failed to identify adequately the questions decided by the CTTT "with respect to a matter of law" that were the subject of the appeal under s 67 (see Edyp v BrazbuildPty Ltd [2011] NSWCA 218 at [35] - [36]). In my view, so far as the solar panels and water tank were concerned, the relevant question of law was whether Mr Sharpe was contractually obliged to install them. As she was entitled to do under s 67(3), Sidis DCJ affirmed the CTTT's decision that Mr Sharpe was not so contractually obliged. Contrary to Grounds 5 and 6 upon which Ms Brimelow relies, her Honour did not therefore exceed her powers under s 67. She thus did not commit any jurisdictional error and, as I concluded earlier (see [16] - [24] above), she did not err in law in reaching her conclusion.

1. Ms Brimelow's Grounds 5 and 6 assume that it is appropriate to describe the relevant question of law at a lower level of abstraction, that is, in this case, whether an "estoppel by representation" precluded Ms Brimelow from contending that Mr Sharpe had the relevant contractual obligation. In my view this assumption is not well-founded, as its application would lead (in this and other cases) to undue focus on the reasons for decision, rather than on the ultimate point of law the determination of which led to an order unfavourable to the appellant. Ms Brimelow's approach, which would require the District Court to remit the proceedings to the CTTT after a successful attack on any step in the CTTT's legal reasoning, whether or not acceptable alternative reasoning led to the same conclusion, would not be conducive to the cost-efficient disposition of litigation. As Spigelman CJ (with the concurrence of the other members of the Court) said in Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300; 71 NSWLR 230 at [103] in relation to the powers conferred by s 75A of the Supreme Court Act on this Court:

"This Court must be concerned that the course of administration of justice in this State does not impose unnecessary cost burdens on parties by adopting a narrow interpretation of statutory powers conferred upon the Court to ensure the just and efficient administration of justice" (referred to with approval by French CJ in Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390 at [31] - [32]).

1. My approach does not conflict with the principle that an appeal under a provision such as s 67 of the CTTT Act cannot extend to a question of law raised for the first time on appeal (see for example Murlan Consulting Pty Ltd v Ku-ring-gai Municipal Council [2009] NSWCA 300; 170 LGER 162 referring to Smith v Collings Homes Pty Ltd [2004] NSWCA 75 at [61] per Handley JA). Here the point of law was raised before, and decided by, the CTTT. The District Court considered a different argument to support the conclusion reached by the CTTT on the question of law, not a new question of law.

1. Sidis DCJ concluded that the CTTT's decision on the point of law of whether Mr Sharpe was contractually liable to install the solar panels and water tank was correct but adopted a different process of reasoning to that of the CTTT. She rejected the CTTT's proposition that an "estoppel by representation" took the installation outside Mr Sharpe's contractual obligations (see [13] above) but concluded that the same result as to Mr Sharpe's liability followed from the proper construction of Mr Sharpe's Quotation and the form of contract signed by the parties. This approach was in my view both permissible and correct. Contrary to Ms Brimelow's submissions, it did not involve her Honour making impermissible factual findings (see Edyp at [53]; [123] - [138]). As I have indicated earlier (see [17]) the relevant facts were undisputed or found by the Tribunal. Her Honour did not decide whether the conversation of which Ms Brimelow gave evidence took place. Rather, she considered whether, if it did occur, it was capable of having the effect for which Ms Brimelow contended (see [19] above). This was a question of law, just as the question of whether there is any evidence to support a factual finding is a question of law (Kostas at [91]).

1. The finding specifically mentioned in Ground 5 (that no plans or specifications were attached to the form of contract or identified by it) was not, as asserted in that ground, a finding of fact. It resulted from her Honour's construction of the document signed by the parties and was thus a finding as to a matter of law.

1. Even if it be assumed (contrary to my view) that, on finding that the CTTT had erred in concluding that an "estoppel by representation" had arisen, Sidis DCJ should have remitted the proceedings to the CTTT for rehearing, this Court should not, as a matter of discretion, quash her Honour's decision and require that to occur. That course would not advance Ms Brimelow's interests as the CTTT would be bound to find against her on the relevant question as to Mr Sharpe's liability. This is so because it is clear that the Quotation formed part of the contract between the parties, that it defined the scope of the work to be done by Mr Sharpe, that it did not provide for installation of the solar panels and water tank and that the conversation Ms Brimelow asserts that she had could not have affected that position.

1. Senior counsel for Ms Brimelow correctly accepted that this Court has a discretion to refuse the certiorari relief that his client seeks. As stated in Roach v B & W Steel Pty Ltd (1991) 23 NSWLR 110 at 114:

"Certiorari for error of law on the face of the record is a discretionary remedy and it is well-established that the court can properly refuse relief where it would be useless or futile: see Ex parte Metropolitan Meat Industry Board; Australasian Meat Employees Union, New South Wales Branch [1972] 1 NSWLR 259 and Coles v Wood [1981] 1 NSWLR 723; see, also The Queen v Johns; Ex parte Public Service Association of South Australia [1971] SASR 206 at 209".

See also R v Commonwealth Court of Conciliation & Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 400; Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 especially at [43] - [62]; Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; 209 CLR 372 especially at [95]; Fitzgerald v Director of Public Prosecutions (1991) 24 NSWLR 45 at 50; R v Williams; ex parte Lewis [1992] 1 Qd R 643 at 658; Mann v Medical Practitioners Board of Victoria [2004] VSCA 148; 21 VAR 429 at [17].

1. More recently, in Reimers v Health Care Complaints Commission [2012] NSWCA 317, Basten JA (with the concurrence of Campbell and Hoeben JJA) said in relation to the Court's power to quash a decision affected by jurisdictional error or error of law on the face of the record that, "at least within appropriate bounds, an order quashing such a decision may be refused in the Court's discretion" (at [6]). His Honour referred to the judgment of Spigelman CJ in Solution 6 Holdings Ltd v Industrial Relations Commission of NSW [2004] NSWCA 200; 60 NSWLR 558 in which Spigelman CJ concluded by saying:

"[135] I proceed on the basis that, in New South Wales, an order in the nature of prohibition is discretionary in all cases, but should issue 'almost as of right'. (To use the formulation of Gibbs CJ in R v Ross-Jones; Ex parte Green (at 194), approved in Re Refugee Tribunal; Ex parte Aala (at 89 [5], 106 [51], 137 [149]))."

1. In my view the present is a case in which the grant of relief in the nature of certiorari would be futile. Accordingly, even if Ms Brimelow had otherwise established her entitlement to relief, I would refuse it on discretionary grounds.

ORDERS

1. For the reasons that I have given, Ms Brimelow's summons should be dismissed with costs.

1. MEAGHER JA: I agree with Macfarlan JA that Ms Brimelow's summons should be dismissed with costs.

1. Ultimately, it is unnecessary to come to a final view as to whether, in affirming the decision of the CTTT that Mr Sharpe was not liable to supply and install the solar energy panels and water tank, the District Court exceeded its jurisdiction under s 67(3) of the CTTT Act. Whether it did so depends in part upon the identification and characterisation of the "question with respect to a matter of law" decided by the Tribunal: s 67(1). It also depends upon whether, having decided that question, the District Court was able to affirm the decision of the Tribunal or otherwise order that the appeal be dismissed without having to make any additional findings of fact to support that conclusion or that result.

1. The task of identifying the relevant "question with respect to a matter of law" is not always an easy one. It is assisted by understanding the question posed, the answer given and the error said to have been made by the Tribunal: per Allsop P (Giles JA agreeing) in Edyp v Brazbuild Pty Ltd [2011] NSWCA 218 at [36], [37], [141].

1. There are two competing formulations of the relevant question decided by the Tribunal. They are described by Macfarlan JA at [27] and [32].

1. The first is whether Ms Brimelow was entitled under her building contract with Mr Sharpe dated 28 May 2007 to have the solar energy panels and water tank supplied and installed. The second is whether Ms Brimelow was estopped from denying that the scope of the works contracted for under that contract included those two items.

1. Having referred to the undated letter from Ms Brimelow, Mr Sharpe's quotation, the amended plans and the signed contract, the Tribunal embarked on the reasoning process extracted by Macfarlan JA at [10]. Notwithstanding that the solar energy panels and water tank were shown in the amended plans, it found that Ms Brimelow was estopped from denying that the scope of the works which were the subject of the contract included those items. The Tribunal went on to conclude that "the intention of the parties, objectively ascertained" was that the solar panels and water tank did not form part of the contract.

1. On one view, the Tribunal's reliance on the doctrine of estoppel by representation is consistent with it having accepted, because the amended plans showed the solar panels and water tank, that as a matter of construction of the contract, the works included those two items. Otherwise it would not have been necessary to resort to that doctrine. However, its conclusion and its reference to the intention of the parties "objectively ascertained" is consistent with it having undertaken a process of construction in accordance with the objective theory of contract.

1. I am inclined to agree with Macfarlan JA's conclusion that in the circumstances of this case the correct formulation of the relevant question is the first and that the error of law was in approaching what was ultimately a question of construction of identified and undisputed contractual documents, by reference to an estoppel which was founded upon an incorrect understanding of the relevant principles.

1. However, as I have said, it is unnecessary to express a final view about that question because, as Macfarlan JA also demonstrates, those identified and undisputed contract documents, and specifically the quotation, clearly defined the scope of contract works and did not provide for the supply and installation of the solar panels and water tank.

1. The interpretation of those documents urged by Ms Brimelow is unreasonable and not sensible. The contract was to construct works for the price of $196,200 quoted in the quotation. The quotation identified the items within the "scope of works". Those items were the subject of the detailed quote. There was no reference to any solar panels or water tank in the quotation. Some of the items in the quote were described by reference to the amended plans by use of the words "as per plan". There was no statement that, or to the effect that, the items the subject of the quote included all of the items shown on the amended plans. Accordingly, Ms Brimelow's interpretation required that Mr Sharpe should supply the two additional items (which otherwise would have cost Ms Brimelow in excess of $50,000) merely because they were shown in the amended plans provided to Mr Sharpe before the quotation was given.

1. Even if the District Court exceeded its jurisdiction under s 67(3), this Court would not in the exercise of its discretion in its supervisory jurisdiction, quash the decision of that Court where it would be futile to do so. That is the case here because if the matter was remitted to the Tribunal it would be bound to reach the same conclusion as to Mr Sharpe's liability as was reached by the District Court. The relevant authorities are cited by Macfarlan JA at [33]. See also SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; 81 ALJR 1190 at [27]-[29].

1. TOBIAS AJA: I agree with Macfarlan JA.

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Decision last updated: 25 October 2012