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Collings Homes v Head & Ors

Collings Homes v Head & Ors

Case [2002] NSWSC 1219 20 December 2002

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CITATION: Collings Homes v Head & Ors [2002] NSWSC 1219

CURRENT JURISDICTION: Common Law Division
Administrative Law List

FILE NUMBER(S): SC 30067 of 2002

HEARING DATE(S): 11 December 2002

JUDGMENT DATE: 20 December 2002

PARTIES :

Collings Homes Pty Ltd (Plaintiff)
v
Trevor Gordon Head (First Defendant)
Sharee Laura Head (Second Defendant)
Consumer, Trader & Tenancy Tribunal (Third Defendant)

JUDGMENT OF: Master Malpass

LOWER COURT
JURISDICTION : Consumer, Trader & Tenancy Tribunal

LOWER COURT
FILE NUMBER(S) : HB 01/83190

LOWER COURT
JUDICIAL OFFICER : P H Molony, Member

COUNSEL : Mr P R Glissan (Plaintiff)
Mr B Pluznyk (First and Second Defendants)
N/A (Third Defendant)

SOLICITORS: Mervyn J Cathers & Co (Plaintiff)
D'Agostino Solicitors (First and Second Defendants)
I V Knight - Crown Solicitor - Submitting Appearance (Third Defendant)

CATCHWORDS: Jurisdiction of Tribunal - building claim - residential building work - meaning of work involved in the construction of a dwelling.

LEGISLATION CITED: Home Building Act 1989, s 3, s 84, s 84 (1),
S 89B.

CASES CITED: Woolfe v Alexander Sussman t/as A Sussman Construction Consulting Services & Anor [2001] NSWSC 702.

DECISION: See Paragraph 36.

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

Master Malpass

Friday 20 December 2002

30067 of 2002 Collings Homes Pty Ltd v Trevor Gordon Head & Ors

REASONS FOR DECISION

1 MASTER: The plaintiff carries on business as a designer of homes and provides other services. The first and second defendants (the defendants) wanted to build a new home on land owned by them at Macquarie Links. They responded to an advertisement published by the plaintiff. Following discussion had between the parties, certain documentation came into being. The plaintiff regarded this as a contract to provide certain services for a fixed sum of $38,500.

2 I shall mention certain of the services provided by the plaintiff. The plaintiff designs project homes which can be modified to meet individual requirements. It provides costings for building work. It obtains development approval. It introduces a licensed builder who is prepared to enter into a building contract for a fixed price and procures execution of such building contract.

3 In the present case, the services to be provided by the plaintiff were of a like nature. The building contract was to be in the sum of $316,000. The price to be paid to the plaintiff for the services was $38,500.

4 Certain of the services were provided. The stage had been reached where application had been made to council and approval may have been forthcoming. A licensed builder had been procured and he had signed the building contract.

5 The defendants had paid a sum of $20,000 to the plaintiff. The plaintiff had expended certain moneys (including council fees). The defendants decided not to proceed. They demanded a refund of the moneys that had been paid. Council was asked not to proceed with the development application.

6 The defendants sought legal advice. A demand was made for the refund of…

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 Collings Homes v Head & Ors

Details

AGLC: Collings Homes v Head & Ors [2002] NSWSC 1219
Case: [2002] NSWSC 1219
Decision Date: 20 December 2002

CaseChat Overview and Summary

The dispute between Collings Homes and Head & Ors reached the court, where the primary issue was whether the Tribunal had jurisdiction to hear a claim regarding residential building work. The claim was brought under the Home Building Act, which allows consumers to seek compensation from builders for defects in residential building work. The question arose as to whether the work in question fell within the definition of residential building work, which includes the construction of a dwelling. Collings Homes argued that the Tribunal did not have jurisdiction as the work did not involve the construction of a dwelling.

The court was tasked with determining the scope of the term 'residential building work' as used in the Home Building Act. The primary focus was on whether the work in question constituted the construction of a dwelling. The court examined the statutory definition of 'residential building work' and the broader context in which it was used. The court also considered the nature of the work carried out and whether it fell within the intended scope of the legislation.

The court found that the Tribunal did have jurisdiction to hear the claim. It held that the work in question did involve the construction of a dwelling and therefore fell within the definition of residential building work. The court emphasised that the statutory definition should be interpreted broadly to achieve the purpose of the legislation, which is to protect consumers in relation to residential building work. The court concluded that the work carried out by Collings Homes met the criteria for residential building work, and thus the Tribunal had the authority to hear the claim.

As a result of the court's decision, the Tribunal was found to have jurisdiction to hear the claim brought by Head & Ors against Collings Homes. The court's interpretation of the term'residential building work' was broad, affirming that the legislation was intended to cover a wide range of construction activities that constitute the building of a dwelling. The decision ensures that consumers who engage in residential building work can seek redress through the Tribunal when necessary.

Orders