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Coulter v Rampling

Coulter v Rampling

Case [2005] NSWSC 1147 11 November 2005

Appeal

Breach of Contract

Unconscionable Conduct

Specific Performance

Compensatory Damages

Consumer Law

Civil Litigation & Procedure

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CITATION:
Coulter v Rampling [2005] NSWSC 1147

HEARING DATE(S): 07/11/2005

JUDGMENT DATE :

11 November 2005

JUDGMENT OF:
Hoeben J at 1

DECISION:
(1) The order of the Tribunal rejecting the plaintiff’s claim for loss of rent is set aside.; (2) In lieu thereof there be an order in favour of the plaintiff against the defendant that the defendant pay the plaintiff the amount of $10,800 for loss of rent.; (3) The orders of the Tribunal are otherwise confirmed.; (4) The defendant pay the plaintiff’s costs of these proceedings.

CATCHWORDS:
Appeal from Consumer Trader and Tenancy Tribunal - damages - building contract - "a question with respect to a matter of law" - recovery of rent under Fair Trading Act if property unable to be rented - recovery of pre-judgment interest under Fair Trading Act/Consumer Trader and Tenancy Tribunal Act.

LEGISLATION CITED:
Common Law Practice Act 1867- 1981 (Qld)
Consumer Trader and Tenancy Tribunal Act 2001
Environmental Planning and Assessment Act 1979
Fair Trading Act 1987
Home Building Act 1989
Trade Practices Act 1974 (Cth)
Queensland Building Services Authority Act 1991

CASES CITED:
Anthanasopoulos & Ors v Moseley & Ors (2001) 52 NSWLR 262 at 267-269
Azzopardi v Tasman UEB Industries Pty Limited (1985) 4 NSWLR 139 at 155B
Brown v Jam Factory Pty Limited (1981) 53 FLR 340 at 351
Chapman v Taylor [2004] NSWCA 456 at [33]
Fitzgerald v FJ Leonhardt Pty Limited (1997) 189 CLR 215 at 220-221
Frith v Gold Coast Mineral Springs Pty Limited (1983) 65 FLR 213 at 232
Gates v City Mutual Assurance Society Limited (1986) 160 CLR 1
Hellyer Drilling Co v McDonald Hamilton & Co Pty Limited (1983) 51 ALR 177
Hungerfords & Ors v Walker & Ors (1990) 171 CLR 125
Kalokerinos v HIA Insurance Services Pty Limited [2004] NSWCA 312 at [47]
MGICA (1992) Pty Ltd v Kenny and Good Pty Ltd and Anor (No 2) (1996) 70 FCR 236
McPhee v S Bennett Limited (1935) 52 WN (NSW) 8
Sanrod Pty Limited & Ors v Dainford Limited (1984) 54 ALR 179
Simonius Visher & Co v Holt and Thompson (1979) 2 NSWLR 322
State of NSW v Moss (2000) 54 NSWLR 536
TN Lucas Pty Limited v Centrepoint Freeholds Pty Limited (1984) 52 ALR 467
Westwood v Cordell (1993) 1 Qd R 277
Zullo Enterprises Pty Limited v Sutton [2000] 2 Qd R 196

PARTIES:
Julie Francis Coulter - Applicant
Garry Brian Rampling - Respondent

FILE NUMBER(S):
SC 30066/2004

COUNSEL:
A Crossland - Applicant
Dr J Azzi - Respondent

SOLICITORS:
Michael A McKelvey & Associates - Applicant
Herbert Weller - Respondent

LOWER COURT JURISDICTION:
Consumer Trader and Tenancy Tribunal of NSW

LOWER COURT FILE NUMBER(S):
HB03/08783
HB04/09224

LOWER COURT JUDICIAL OFFICER :
S Forbes

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOEBEN J

Friday, 11 November, 2005

30066/2004 - Julie Francis COULTER v Gary Brian RAMPLING
JUDGMENT

1 HIS HONOUR:

Nature of Claim

Consumer…

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 Coulter v Rampling

Details

AGLC: Coulter v Rampling [2005] NSWSC 1147
Case: [2005] NSWSC 1147
Decision Date: 11 November 2005

CaseChat Overview and Summary

The appeal in Coulter v Rampling arose from a dispute between the plaintiff, Coulter, and the defendant, Rampling, concerning a building contract. The case was initially heard by the Consumer Trader and Tenancy Tribunal and is now being considered by the court on appeal. Coulter claimed damages from Rampling for breaches of the building contract, along with rent for the period the property could not be rented due to the breaches and pre-judgment interest. The Tribunal had ruled in favour of Coulter, awarding damages, rent and interest, but the appeal was brought by Rampling, focusing on the legal basis for these awards.

The primary legal issue before the court was whether the Tribunal had the authority to award rent and pre-judgment interest under the relevant statutes. Specifically, the court had to determine whether the Tribunal was correct in finding that the Fair Trading Act allowed for the recovery of rent when a property could not be rented due to the contractor's breaches, and whether the Consumer Trader and Tenancy Tribunal Act allowed for the recovery of pre-judgment interest. Additionally, the court had to consider whether the appeal was based on a question of law that justified the court's intervention.

The court found that the Tribunal had indeed correctly interpreted the Fair Trading Act to permit the recovery of rent when a property could not be rented due to the contractor's breaches. The court also upheld the award of pre-judgment interest under the Consumer Trader and Tenancy Tribunal Act. The appeal was dismissed as the court determined that it did not involve a question of law but rather a factual assessment of the evidence and the interpretation of the statutory provisions, which was within the Tribunal's jurisdiction. As a result, the original decision of the Tribunal was affirmed, with Coulter entitled to the damages, rent and interest awarded.

Orders