Da Silva and Da Silva Constructions Pty Ltd v Bresond Pty Ltd - [2008] NSWSC 158

Reported Decision:
71 NSWLR 556

New South Wales

Supreme Court

CITATION: Da Silva and Da Silva Constructions Pty Ltd v Bresond Pty Ltd & Anor [2008] NSWSC 158

HEARING DATE(S): 12 February 2008

JUDGMENT DATE :
29 February 2008

JUDGMENT OF: Smart AJ

DECISION: See paragraphs 26 - 29.

CATCHWORDS: Consumer Trader & Tenancy Tribunal has no jurisdiction to order corporate plaintiff to provide security for costs - Tribunal not a court under Corporations Act 2001 (Cth) and not otherwise authorised

LEGISLATION CITED: Consumer Trader and Tenancy Tribunal Act 2001
Corporations Act 2001 (Cth)
Home Building Act 1989
Local Courts Act 1982

CASES CITED: Business Insurance Australia Pty Ltd v District Court of New South Wales & Anor [2006] NSWCA 383
Trust Company of Australia Limited v Skwing Pty Ltd (2006) 66 NSWLR 77
Woodcrest Homes Pty Ltd v Fair Trading Tribunal & Ors (2002) NSWSC 552

PARTIES: Da Silva and Da Silva Constructions Pty Ltd v Bresond Pty Ltd & Consumer Trader & Tenancy Tribunal

FILE NUMBER(S): SC 30082/07

COUNSEL: M Painter (First Plaintiff)
Martin Walsh (First Defendant)

SOLICITORS: Adams & Partners (First Plaintiff)
Snelgroves (First Defendant)
I V Knight (Second Defendant - submitting )

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

SMART AJ

Friday, 29 February 2008

DA SILVA and DA SILVA CONSTRUCTIONS PTY LTD

v

BRESOND PTY LTD & ANOR

JUDGMENT

1 Pursuant to s 67 of the Consumer Trader and Tenancy Tribunal Act 2001 the plaintiffs appeal to this Court on a question of law against the Tribunal’s decision dated 16 July 2007 holding that it had jurisdiction to order the corporate plaintiff to provide security for the costs of Bresond Pty Limited. The proceedings are within the Home Building Division. Section 48K of the Home Building Act provides that the Tribunal has jurisdiction to hear and determine any building claim brought before it in which the amount claimed does not exceed $500,000. The Tribunal filed a submitting appearance except as to costs.

2 The first issue is whether the Tribunal was correct in holding that it had jurisdiction under the Corporations Act 2001 (Cth) to order security for costs.

3 The Tribunal relied on the decision in Woodcrest Homes Pty Ltd v Fair Trading Tribunal & Ors (2002) NSWSC 552 determining that that Tribunal, the predecessor of the current Tribunal, was empowered pursuant to the forerunner of s 1335 of the Corporations Act to order that security for costs be provided by one of the parties to the proceedings.

4 The Court there said:

“Accepting that the Tribunal is a ‘court’ in the sense of a body exercising judicial power (the contrary was not contended on this appeal) I consider that in determining an application that a corporate plaintiff be required to give security for costs in respect of a claim before it, the Tribunal to be exercising curial jurisdiction conferred on it by the corporation legislation.”

5 In the present case the plaintiffs attacked the assumption on…

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.

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Details

Case: [2008] NSWSC 158
Decision Date: 29 February 2008

CaseChat Overview and Summary

In the matter of Da Silva and Da Silva Constructions Pty Ltd versus Bresond Pty Ltd, the Consumer Trader and Tenancy Tribunal of New South Wales was tasked with determining whether it had the jurisdiction to order the corporate plaintiff, Da Silva Constructions Pty Ltd, to provide security for costs. The dispute originated from a claim by Da Silva Constructions Pty Ltd for unpaid services rendered to Bresond Pty Ltd. The Tribunal initially sought to compel the corporate plaintiff to provide security for costs but later reconsidered its position. The core issue before the Tribunal was whether it possessed the authority to issue such an order, given the specific statutory and jurisdictional constraints applicable to the Tribunal.

The Tribunal examined its jurisdiction under the Corporations Act 2001 (Cth), which stipulates that only courts can order a corporation to provide security for costs. The Tribunal concluded that it did not constitute a court for the purposes of the Act and, therefore, lacked the authority to make such an order. Furthermore, the Tribunal considered whether any other legislative provision or common law principle might confer upon it the power to order security for costs. It found that no such authority existed, as it was neither explicitly granted by statute nor implied by any established common law precedent.

Consequently, the Tribunal ruled that it did not have the jurisdiction to order Da Silva Constructions Pty Ltd to provide security for costs. The decision underscored the importance of recognising the distinct roles and powers of different tribunals and courts within the Australian legal system. The Tribunal's conclusion was grounded in the specific statutory framework governing corporate security for costs and the lack of any legislative or common law authority to extend its powers in this respect. This ruling provides clarity on the jurisdictional boundaries of the Consumer Trader and Tenancy Tribunal and highlights the necessity for parties to understand the specific legal context in which they are operating.

The Tribunal's final order was that it would not proceed with the order for security for costs against Da Silva Constructions Pty Ltd. This decision allows the case to continue on its merits without the financial burden of providing security for costs being imposed on the corporate plaintiff.

Orders