Legal Research
Cases
Channell v Graham

Channell v Graham

Case [2016] NSWCATCD 80 29 September 2016

No judgment structure available for this case.

Type to search within this case.

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Channell v Graham [2016] NSWCATCD 80
Hearing dates: 28 October 2015, 15 and 16 February 2016
Decision date: 29 September 2016
Jurisdiction: Consumer and Commercial Division
Before: D. Goldstein, Senior Member
Decision:
1. The application is dismissed.

2. The parties are at liberty to make a costs application in these proceedings.

3. Any costs application pursuant to section 53 of the Consumer, Trader and Tenancy Tribunal Act 2001 must be lodged in the Tribunal and served on the costs respondent within 21 days of the date of this order either attaching or referring to the documents relied upon in support of the application.

4. The costs respondent will have 21 days after the date it receives the application referred to lodge in the Tribunal and serve on the costs applicant its submissions, if any, in response to the cost applicant’s costs application, such submissions either attaching or referring to the documents relied upon.

5. The cost applicant will have 14 days after the date it receives the cost respondent’s submissions to lodge in the Tribunal and serve on the costs respondent its submissions, if any, in reply, such submissions either attaching or referring to the documents relied upon.
6. The Tribunal will determine any costs application on the basis of the papers lodged in the Tribunal
Catchwords: What constitutes a ‘building claim’, Contract formation
Legislation Cited: Civil and Administrative Tribunal Act 2013
Consumer, Trader and Tenancy Tribunal Act 2001
Consumer, Trader and Tenancy Tribunal Regulation 2009
Home Building Act 1989
Cases Cited: Dennis Pethybridge v Stedikas Holdings Pty Ltd [2007] NSWCA 154
Brendan Jay McAllery and Tracy Catherine McAllery v Alta Building & Developments Pty Ltd [2014] NSWCATCD 106
Hyder Consulting (Australia) Pty Ltd v Wilh Wilhelmsen Agency Pty Ltd and Anor [2001] NSWCA 313
Texts Cited: Building and Construction Contracts in Australia, Dorter and Sharkey, Second Edition
Category: Principal judgment
Parties: Applicant: Irene Channell
Respondent: Roberta Graham
Representation: Counsel: Mr N. Siafakas for the applicant
Mr L. Gor for the respondent
Solicitors: J.S. Mueller & Co for the respondent

File Number(s): HB 12/53320
Publication restriction: Unrestricted

Reasons for Decision

These proceedings were commenced in October 2012 when the applicant claimed the sum of $108,157.74 from the respondent in connection with an agreement between the parties which was described in the application in terms of the respondent being the applicant’s agent and project manager in connection with the renovation of a residential property owned by the applicant in Sans Souci.
The Consumer Trader and Tenancy Tribunal was abolished as of 1 January 2014 and the Consumer, Trader and Tenancy Tribunal Act 2001 and the Consumer, Trader and Tenancy Tribunal Regulation 2009 were repealed. As the application was not fully determined at that time, the proceedings were ‘unheard proceedings’ as defined in clause 6 of Schedule 1 of the Civil and Administrative Tribunal Act 2013.
Transitional provisions in relation to unheard proceedings are set out in clause 7 of Schedule 1…

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 Channell v Graham

Details

AGLC: Channell v Graham [2016] NSWCATCD 80
Case: [2016] NSWCATCD 80
Decision Date: 29 September 2016

CaseChat Overview and Summary

Channell v Graham was a case brought before the Consumer, Trader and Tenancy Tribunal in Australia. The parties involved were Channell, the applicant, and Graham, the respondent. The dispute centred around whether certain payments made by Channell constituted a "building claim" under the Home Building Act 1989. Channell sought to recover payments made to Graham for services rendered in connection with a building project. The tribunal was tasked with determining the nature of these payments and whether they qualified as a building claim.

The primary legal issue before the tribunal was whether the payments made by Channell to Graham constituted a building claim under the Home Building Act 1989. The tribunal had to ascertain if the services provided by Graham were related to the construction or renovation of a building and if the payments were made for such services. Additionally, the tribunal needed to determine if a contract existed between the parties that could give rise to a building claim. This involved examining the terms and conditions of any agreements between Channell and Graham, as well as the nature of the services provided.

The tribunal found that the payments made by Channell did not constitute a building claim under the Home Building Act 1989. It concluded that the services provided by Graham were not related to the construction or renovation of a building. Furthermore, the tribunal held that no contract existed between the parties that could give rise to a building claim. The tribunal dismissed Channell's application and ordered that the parties were at liberty to make a costs application in these proceedings. The tribunal also outlined the procedure for any costs application, specifying the timeframes for lodging and responding to such applications, and mandating that all documents relied upon be attached or referred to in the submissions.

Orders

Orders of the court

1. The application is dismissed.

2. The parties are at liberty to make a costs application in these proceedings.

3. Any costs application pursuant to section 53 of the Consumer, Trader and Tenancy Tribunal Act 2001 must be lodged in the Tribunal and served on the costs respondent within 21 days of the date of this order either attaching or referring to the documents relied upon in support of the application.

4. The costs respondent will have 21 days after the date it receives the application referred to lodge in the Tribunal and serve on the costs applicant its submissions, if any, in response to the cost applicant’s costs application, such submissions either attaching or referring to the documents relied upon.

5. The cost applicant will have 14 days after the date it receives the cost respondent’s submissions to lodge in the Tribunal and serve on the costs respondent its submissions, if any, in reply, such submissions either attaching or referring to the documents relied upon.

6. The Tribunal will determine any costs application on the basis of the papers lodged in the Tribunal

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Channell v Graham [2016] NSWCATCD 80

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 11 of 11 shown

Brendan Jay McAllery and Tracy Catherine McAllery v Alta Building and Developments Pty Ltd
[2014] NSWCATCD 106 Para 84

…In Brendan Jay McAllery and Tracy Catherine McAllery v Alta Building & Developments Pty Ltd [2014] NSWCATCD 106 the owners referred to terms to be implied into a cost plus contract in connection with the assertion that only ‘direct actual costs that have been reasonably and properly incurred’ could be recovered. In th…
Pethybridge v Stedikas Holdings Pty Ltd
[2007] NSWCA 154 Para 78

…he contract that the parties entered into, I have had regard to the decision of the Court of Appeal in Dennis Pethybridge v Stedikas Holdings Pty Ltd [2007] NSWCA 154 and in particular to paragraph 59 of the judgement of Campbell JA where his Honour stated:…
Barton v Stiff
[2006] VSC 307

…R 45; Foster v AT Brine & Sons Pty Ltd [1972] WAR 157; Cassidy v Engwirda Construction Co (No 2) [1968] Qd R 159 at 161 per Hoare J; Barton v Stiff [2006] VSC 307 . The proper performance of the implied duty of skill and care will extend in appropriate cases to require conformity with standard building practice.…
El-Mir v Risk
[2005] NSWCA 215 Para 17

…imber Importers v Mercantile Mutual Insurance [2002] NSWCA 304 ; (2002) 12 ANZ Ins Cas 61-543 at 76,367, [2002] NSWCA 304 at [17] ; El-Mir v Risk [2005] NSWCA 215 at [66] .’…
Brian Geaney Pty Ltd & Anor v Close Constructions Pty Ltd
[2003] QSC 393

…contractor and in accordance with good building practice: see Brian Geaney Pty Ltd v Close Constructions Pty Ltd [2003] Aust Torts Reports 81-719; [2003] QSC 393 . See further Riverside Motors Pty Ltd v Abrahams [1945] VLR 45; Foster v AT Brine & Sons Pty Ltd [1972] WAR 157; Cassidy v Engwirda Construction Co (N…
Independent Timber Importers v Mercantile Mutual Insurance
[2002] NSWCA 304

…214 ; (2002) 20 ACLC 1476 at 1483-1484, 116 IR 380 at 388, [2002] NSWCA 214 at [39] ; Independent Timber Importers v Mercantile Mutual Insurance [2002] NSWCA 304 ; (2002) 12 ANZ Ins Cas 61-543 at 76,367, [2002] NSWCA 304 at [17] ; El-Mir v Risk [2005] NSWCA 215 at [66] .’…
Walker v Andrew
[2002] NSWCA 214

…) Aust Contract R 90-131 at 91,609-91,610, [2001] NSWCA 221 at [50] - [53] per Ipp AJA (with whom Meagher and Heydon JJA agreed); Walker v Andrew [2002] NSWCA 214 ; (2002) 20 ACLC 1476 at 1483-1484, 116 IR 380 at 388, [2002] NSWCA 214 at [39] ; Independent Timber Importers v Mercantile Mutual Insurance [2002] NSWCA…
Royal Botanic Gardens and Domain Trust v South Sydney City Council
[2002] HCA 5

…edition, p 392-393 ; Cross on Evidence, 7th Australian edition, para [39290]; Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5 ; (2002) 186 ALR 289 at 318 [109] , per Kirby J. The more restrictive view, favoured in this Court, is that subsequent communications cannot be looked to…
Hyder Consulting (Australia) Pty Ltd v Wilh Wilhelmsen Agency Pty Ltd
[2001] NSWCA 313 Para 86

…In Hyder Consulting (Australia) Pty Ltd v Wilh Wilhelmsen Agency Pty Ltd and Anor [2001] NSWCA 313 Meagher JA stated in connection with an issue of assessment of damages:…
Magill v National Australia Bank Ltd
[2001] NSWCA 221

…d v Bathurst City Council [2001] NSWCA 61 ; (2001) 53 NSWLR 153 at 163-164, [2001] NSWCA 61 at [25] - [26] ; Magill v National Australia Bank Ltd [2001] NSWCA 221 ; (2001) Aust Contract R 90-131 at 91,609-91,610, [2001] NSWCA 221 at [50] - [53] per Ipp AJA (with whom Meagher and Heydon JJA agreed); Walker v Andrew…
[2001] NSWCA 61
[2001] NSWCA 61

…ntract, but can be looked to as an aid to deciding whether a contract has been entered into at all: Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61 ; (2001) 53 NSWLR 153 at 163-164, [2001] NSWCA 61 at [25] - [26] ; Magill v National Australia Bank Ltd [2001] NSWCA 221 ; (2001) Aust Contract R 90-131…

Legislation cited in this decision · 3

Civil and Administrative Tribunal Act 2013 (NSW)
1 mention (from Para 2)
Consumer, Trader and Tenancy Tribunal Act 2001 (NSW)
1 mention (from Para 2)
Home Building Act 1989 (NSW)
1 mention (from Para 9)

Medium Neutral Citation:	Channell v Graham [2016] NSWCATCD 80
Hearing dates:	28 October 2015, 15 and 16 February 2016
Decision date:	29 September 2016
Jurisdiction:	Consumer and Commercial Division
Before:	D. Goldstein, Senior Member
Decision:	1. The application is dismissed. 2. The parties are at liberty to make a costs application in these proceedings. 3. Any costs application pursuant to section 53 of the Consumer, Trader and Tenancy Tribunal Act 2001 must be lodged in the Tribunal and served on the costs respondent within 21 days of the date of this order either attaching or referring to the documents relied upon in support of the application. 4. The costs respondent will have 21 days after the date it receives the application referred to lodge in the Tribunal and serve on the costs applicant its submissions, if any, in response to the cost applicant’s costs application, such submissions either attaching or referring to the documents relied upon. 5. The cost applicant will have 14 days after the date it receives the cost respondent’s submissions to lodge in the Tribunal and serve on the costs respondent its submissions, if any, in reply, such submissions either attaching or referring to the documents relied upon. 6. The Tribunal will determine any costs application on the basis of the papers lodged in the Tribunal
Catchwords:	What constitutes a ‘building claim’, Contract formation
Legislation Cited:	Civil and Administrative Tribunal Act 2013 Consumer, Trader and Tenancy Tribunal Act 2001 Consumer, Trader and Tenancy Tribunal Regulation 2009 Home Building Act 1989
Cases Cited:	Dennis Pethybridge v Stedikas Holdings Pty Ltd [2007] NSWCA 154 Brendan Jay McAllery and Tracy Catherine McAllery v Alta Building & Developments Pty Ltd [2014] NSWCATCD 106 Hyder Consulting (Australia) Pty Ltd v Wilh Wilhelmsen Agency Pty Ltd and Anor [2001] NSWCA 313
Texts Cited:	Building and Construction Contracts in Australia, Dorter and Sharkey, Second Edition
Category:	Principal judgment
Parties:	Applicant: Irene Channell Respondent: Roberta Graham
Representation:	Counsel: Mr N. Siafakas for the applicant Mr L. Gor for the respondent Solicitors: J.S. Mueller & Co for the respondent
File Number(s):	HB 12/53320
Publication restriction:	Unrestricted