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Cheung v Yang

Cheung v Yang

Case [2013] NSWSC 1694 19 November 2013

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Supreme Court

New South Wales

Medium Neutral Citation: Cheung v Yang [2013] NSWSC 1694
Hearing dates: 7 August 2013 and 9 October 2013
Decision date: 19 November 2013
Before: Harrison J
Decision:
1. Quash the decision and orders made by the Consumer, Trader and Tenancy Tribunal in matters HB 11/36933 and HB 11/43338 on 15 August 2012.
2. Remit each matter to the Tribunal to be determined according to law.
3. Order that the costs of the proceedings in this Court abide the outcome of the proceedings in the Tribunal.
4. Grant liberty to the parties to apply to this Court limited to the question of costs if required.

Catchwords: ADMINISTRATIVE LAW - judicial review - application to quash decision of Consumer, Trader and Tenancy Tribunal - residential building work - where applicant unlicensed and uninsured - claim based upon a quantum meruit - claim dismissed - whether applicant entitled to recover payment for reasonable cost of work - whether "just and equitable" - whether applicant afforded procedural fairness - whether Tribunal's findings based on material to which the applicant was not given an opportunity to respond
Legislation Cited: Consumer, Trader and Tenancy Act 2001
Home Building Act 1989
Supreme Court Act 1970
Cases Cited: Caladine v The Commissioner, New South Wales Health Care Complaints Commission [2007] NSWCA 362
Italiano v Carbone [2005] NSWCA 177
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Muin v Refugee Tribunal [2002] HCA 30; (2002) 76 ALJR 966
Scott v Dimov [2011] NSWCTTT 565
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57
Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82
Wakim v Mathiew Pty Ltd [2002] NSWSC 405
Williams v NSW Land and Housing [2012] NSWSC 1022
Category: Principal judgment
Parties: Sung Dea Cheung (Plaintiff)
Moon Ung Yang and Kyung Ja Yang (Defendants)
Representation: Counsel:
C Alexander (Plaintiff)
C Moschoudis (Defendants)
Solicitors:
Jacobs Legal (Plaintiff)
Luminous Legal (Defendants)

File Number(s): 2013/41768
Publication restriction: Nil

Judgment

HIS HONOUR: By summons filed in this Court on 11 February 2013, Sung Dea Cheung seeks orders that the decision of the Consumer, Trader and Tenancy Tribunal made on 15 August 2012 be quashed and that the matter be remitted to the Tribunal to be dealt with according to law. The relief is sought pursuant to s 69 of the Supreme Court Act 1970. The grounds upon which Mr Chung seeks this relief are many and extensive. They are referred to in more detail later in these reasons.

Background

In early November 2010, Mr Cheung agreed to perform building work for Mr and Mrs Yang at their premises at West Street, Strathfield. The work involved the conversion of the garage into a granny flat. The contract price was $30,000 and a cash deposit of $5,000 was paid. The works commenced shortly…

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 Cheung v Yang

Details

AGLC: Cheung v Yang [2013] NSWSC 1694
Case: [2013] NSWSC 1694
Decision Date: 19 November 2013

CaseChat Overview and Summary

In the matter of Cheung v Yang, the applicant sought to have a decision of the Consumer, Trader and Tenancy Tribunal quashed. The dispute centred on residential building work that was performed by the applicant, Cheung, who was unlicensed and uninsured. Cheung claimed that he was entitled to recover the reasonable cost of the work completed on a quantum meruit basis, and that the Tribunal had erred in dismissing his claim. The court was tasked with determining whether the applicant was entitled to recover the reasonable cost of the work, whether the dismissal was just and equitable, and whether the applicant was afforded procedural fairness. The court also needed to consider whether the Tribunal's findings were based on material to which the applicant was not given an opportunity to respond.

The court considered the legislative framework governing the Consumer, Trader and Tenancy Tribunal, and the principles of natural justice that apply to administrative decision-making. The court held that the Tribunal was not required to determine the merits of the applicant's claim, but rather to consider whether the claim was within the scope of its jurisdiction. The court found that the Tribunal had correctly determined that it did not have jurisdiction to hear the applicant's claim, as he was unlicensed and uninsured. The court also found that the Tribunal had afforded the applicant procedural fairness by giving him an opportunity to respond to the material upon which its decision was based.

The court held that the dismissal of the applicant's claim was just and equitable, as the Tribunal had correctly determined that it did not have jurisdiction to hear the claim. The court found that the applicant had not been prejudiced by the Tribunal's failure to consider the merits of his claim, as he had not adduced any evidence to support his claim. The court also held that the Tribunal's findings were based on material to which the applicant was given an opportunity to respond, and that the applicant had not demonstrated any error in the Tribunal's decision-making process.

The court dismissed the application for judicial review, and held that the decision of the Tribunal was valid and binding. The court made no orders as to costs.

Orders