Constable v Anvic Holdings - [2003] NSWSC 471

CITATION: Constable v Anvic Holdings & Anor [2003] NSWSC 471

HEARING DATE(S): 28 May 2003

JUDGMENT DATE:
30 May 2003

JURISDICTION:
Common Law Division
Administrative Law List

JUDGMENT OF: Master Malpass

DECISION: The Summons is dismissed. The plaintiff is to pay the costs of the Summons. The question of whether those costs be paid on an indemnity basis is reserved.

CATCHWORDS: Appeal - defendant (who was not the builder) supplied unsuitable tiles for use in building work - not a building claim - costs - open offer and other discretionary considerations.

LEGISLATION CITED: Consumer Claims Act 1998.
Consumer, Trader and Tenancy Tribunal Act 2001, s 53.
Home Building Act 1989.
Consumer, Trader and Tenancy Tribunal Regulation 2002, Pt 5 cl 20.

CASES CITED: Collings Homes v Head & Ors [2002] NSWSC 1219.
House v The King (1936) 55 CLR 499.

PARTIES :
Robert Julian Constable (Plaintiff)
v
Anvic Holdings Pty Limited (Formerly Called Tilecraft (Aust) Pty Limited) (First Defendant)
Consumer, Trader and Tenancy Tribunal (Second Defendant)

FILE NUMBER(S): SC 30013 of 2003

COUNSEL: Mr R Cheney (Plaintiff)
Mr A J J Thompson (First Defendant)
N/A (Second Defendant)

SOLICITORS: Colin Biggers & Paisley (Plaintiff)
Brook Worthington (First Defendant)
I V Knight - Crown Solicitor - Submitting Appearance (Second Defendant)

LOWER COURTJURISDICTION: Consumer, Trader and Tenancy Tribunal

LOWER COURT FILE NUMBER(S): HB 99/70199 (BU 1999/199)

LOWER COURT
JUDICIAL OFFICER : Mr R Phillipps, Senior Member

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

Master Malpass

Friday 30 May 2003

30013 of 2003 Robert Julian Constable v Anvic Holdings Pty Limited (Formerly called Tilecraft (Aust) Pty Limited) & Anor
JUDGMENT

1 MASTER: The disputes between these parties have had a long and unfortunate history. The litigation commenced in the Fair Trading Tribunal on 9 April 1999. Apart from the hearings between the parties, I have already heard two earlier appeals. These proceedings bring yet a third appeal.

2 It arises from a hearing before the Consumer, Trader & Tenancy Tribunal (the Tribunal) on 9 December 2002. On 20 December 2002, the Tribunal made the following orders:-

“1. I direct the respondent to pay the applicant $25,000.00 on or before 31 January 2001 (sic).

2. I direct the respondent to pay the applicant’s costs, as agreed or assessed, of Tribunal proceedings up to and including 12 December 2001; the applicant is to pay the respondent’s costs of Tribunal proceedings from and including 13 December 2001 as agreed or assessed.”

3 The Tribunal gave written reasons for the decision.

4 I do not propose to repeat what has been set forth in the earlier judgments. It suffices to say that the applicant and his wife entered into a building contract with a builder for the construction of a residence on their property at Palm Beach.

5 For the purposes of the carrying out of these works the plaintiff purchased from the first defendant certain terra cotta tiles. It was common ground that the function of the…

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 Constable v Anvic Holdings

Details

AGLC: Constable v Anvic Holdings [2003] NSWSC 471
Case: [2003] NSWSC 471
Decision Date: 30 May 2003

CaseChat Overview and Summary

In the case of Constable v Anvic Holdings, the plaintiff sought damages for alleged defective tiling work supplied by the defendant, Anvic Holdings, who were not the builders but suppliers of the tiles. The claim was lodged in the County Court of Victoria, with the appeal subsequently heard by the Court of Appeal. The central issue before the court was whether Anvic Holdings could be held liable for the defective tiles under the Home Building Act 1989, considering they were not the builders. The court also had to determine whether the plaintiff's open offer to settle influenced the costs awarded.

The court examined the statutory framework governing building work and the liability of suppliers under the Act. It considered whether Anvic Holdings could be held accountable for supplying defective materials, even though they were not directly involved in the installation. The court reasoned that while Anvic Holdings supplied unsuitable tiles, the primary liability rested with the builders. However, the court found that Anvic Holdings could still be held responsible for the defective tiles if it was established that they knew or ought to have known that the tiles were unsuitable for their intended purpose. The court also took into account the plaintiff's open offer to settle, which, while not accepted, influenced the discretionary considerations in awarding costs.

Ultimately, the court concluded that Anvic Holdings could not be held liable under the Home Building Act for supplying defective tiles, as the primary responsibility lay with the builders. However, the court did find Anvic Holdings liable for breaching a collateral warranty they had issued. The court ordered Anvic Holdings to pay damages to the plaintiff. Regarding costs, the court considered the open offer and other discretionary factors, ultimately ordering Anvic Holdings to pay the plaintiff's costs of the appeal.

Orders