Brimelow v Sharpe

Case [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…

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AGLC
Brimelow v Sharpe [2012] NSWCA 345
Case
[2012] NSWCA 345
Decision Date

CaseChat Overview and Summary

In the Supreme Court of New South Wales, Court of Appeal, the plaintiff, Brimelow, appealed against a decision of the District Court. The dispute originated from proceedings before the Consumer, Trader and Tenancy Tribunal (CTTT) concerning a contract for construction and renovation works at the plaintiff's family home. The plaintiff sought relief by way of certiorari from the District Court, alleging jurisdictional error or error of law on the face of the record by the CTTT.

The central legal issues before the Court of Appeal were whether the District Court had erred in its review of the CTTT's decision. Specifically, the court considered whether the District Court was entitled to find that the CTTT's decision on a question of law was justifiable by a different legal analysis than that adopted by the CTTT, whether the District Court should have remitted the proceedings back to the CTTT for redetermination, and whether the District Court had made impermissible factual findings in exercising its discretion to grant or refuse certiorari relief. The underlying contractual dispute involved whether the installation of solar panels and a water tank formed part of the contract, and whether their inclusion in plans, despite omission from the builder's quotation, created an obligation to install them, with the plaintiff also contending an oral conversation supported this interpretation.

The Court of Appeal found that the District Court had not erred in its assessment of the CTTT's decision. The court applied principles of judicial review, considering the scope of certiorari and the limitations on a reviewing court's ability to substitute its own findings or legal analyses for those of the original tribunal. The court determined that the District Court had correctly identified that the CTTT's decision was not affected by jurisdictional error or an error of law on the face of the record, and that the District Court had not made impermissible factual findings. Consequently, the Court of Appeal dismissed the plaintiff's summons.

Orders

Orders of the court

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.]

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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