Donabray Pty Ltd v Wardman
[2001] WASCA 97
•28 MARCH 2001
DONABRAY PTY LTD -v- WARDMAN & ANOR [2001] WASCA 97
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 97 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:100/2000 | 19 MARCH 2001 | |
| Coram: | WALLWORK J ANDERSON J GROVE AJ | 28/03/01 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| PDF Version |
| Parties: | DONABRAY PTY LTD (ACN 009 108 581) SIMON PETER WARDMAN PENNI LAVERNE WARDMAN |
Catchwords: | Appeal To District Court from Building Disputes Committee Extension of time for lodging appeal Relevant factors Demonstration of fairly arguable case |
Legislation: | Builders Registration Act 1939 District Court of Western Australia Act 1969 |
Case References: | General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Jackamarra v Krakouer (1998) 195 CLR 516 Palata Investments Ltd v Burt & Sinfield Ltd (1985) 1 WLR 942 Clarke v National Westminster Finance Australia Ltd, unreported; FCt SCt of WA; Library No 6920; 13 November 1987 Wing Luck Foods v Lay Choo Lim [1989] WAR 358 Yujonvich v Argosy Nominees Pty Ltd (1990); unreported; SCt of WA; Library No 8331; 22 June 1990 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : DONABRAY PTY LTD -v- WARDMAN & ANOR [2001] WASCA 97 CORAM : WALLWORK J
- ANDERSON J
GROVE AJ
- Appellant
AND
SIMON PETER WARDMAN
PENNI LAVERNE WARDMAN
Respondents
Catchwords:
Appeal - To District Court from Building Disputes Committee - Extension of time for lodging appeal - Relevant factors - Demonstration of fairly arguable case
Legislation:
Builders Registration Act 1939
District Court of Western Australia Act 1969
(Page 2)
Result:
Appeal allowed
Representation:
Counsel:
Appellant : Mr D L Jones
Respondents : Mr K E Yin
Solicitors:
Appellant : E M Stanley & Co
Respondents : Black & Co
Case(s) referred to in judgment(s):
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Jackamarra v Krakouer (1998) 195 CLR 516
Palata Investments Ltd v Burt & Sinfield Ltd (1985) 1 WLR 942
Case(s) also cited:
Clarke v National Westminster Finance Australia Ltd, unreported; FCt SCt of WA; Library No 6920; 13 November 1987
Wing Luck Foods v Lay Choo Lim [1989] WAR 358
Yujonvich v Argosy Nominees Pty Ltd (1990); unreported; SCt of WA; Library No 8331; 22 June 1990
(Page 3)
1 WALLWORK J: I agree with the reasons for judgment of Grove AJ and to the order proposed by his Honour.
2 ANDERSON J: I have had the advantage of reading in draft the reasons for judgment of Grove AJ. I agree entirely with those reasons and there is nothing I wish to add.
3 GROVE AJ: This is an appeal by a builder (Donabray Pty Ltd - the appellant) from the refusal of an application in the District Court (Blaxell DCJ) for an extension of time to file an originating summons seeking leave to appeal against an order made by the Building Disputes Committee (the Committee) constituted under s 26 of the Builders Registration Act (1939) (the Act). An appeal from such an order to the District Court lies pursuant to s 41 of the Act by leave of the Committee or of the District Court and the decision of the District Court in the appeal is final (s 41(4)). Order 8 r 5 and r 29 of the Rules of the District Court require such an application for leave to appeal to be filed within 21 days of the decision in question or within such further time as a Judge or Registrar shall allow. The effect of the refusal of extension of time was held by Master Bredmeyer to be final and thus the matter came before the Court as of right pursuant to s 79 of the District Court of Western Australia Act 1969.
4 To grant an extension of time is to put at risk a vested right of the respondents. The issue in the present circumstances does not involve the doing of an act in respect of an appeal already lodged. Contrast Jackamarra v Krakouer (1998) 195 CLR 516. Thus, at the time of the application, the applicant's right of appeal was gone and it was apt to consider as four main factors the length of delay, the reason for delay, whether there was an arguable case and the extent of any prejudice suffered by the respondents: Palata Investments Ltd v Burt & Sinfield Ltd (1985) 1 WLR 942.
5 In the present case, the decision was delivered on the day of hearing, 24 March 1999, and time for lodgment of application in the District Court expired on 14 April. The application to extend was filed on 20 May and the length of delay might therefore be stated as 36 days. Blaxell DCJ noted that the application was lodged approximately two months after the decision.
6 The dispute between the parties arises out of contract between the appellant builder and the respondent home owners to construct a
(Page 4)
- swimming pool and to supply accessories and do some related work, particularly paving the pool surrounds. I shall turn to some aspects of the dispute but deal first with the reasons for delay in lodgment of the application to the District Court.
7 The respondents lodged their complaint with the Committee on 13 October 1998. On 30 November 1998, solicitors for the appellant (Bennett & Co) wrote to the respondents indicating, inter alia, that Local Court proceedings by the appellant against them were contemplated and canvassing action which might be taken to avoid this. Also raised was a question of denial of access of the appellant to the property. Solicitors acting for the respondents replied by letter on 1 December 1998 and stated in conclusion:
"We note that our clients are due to have this matter adjudicated by the Builder's Registration Board in late January/early February 1999. We confirm that we have instructions to accept service, but suggest to you that the reports, submissions and subsequent decision go to the heart of the dispute between our clients and that programming orders etc. for discovery should await those determinations. We do believe, however, that this is a matter where the use of court based mediation may serve to move the parties to an outcome short of trial."
8 A notice of hearing was issued and notified 11 am on Wednesday, 24 March 1999 at a stated address for the Committee hearing. The notice itself bore date 22 December 1998. The managing director of the appellant (Mr Said) received this notice which included a footnote:
"Attendance
It is not compulsory that you attend the hearing. If you do not attend the Committee will not have the benefit of hearing the full version of your side of the dispute. If it is your intention not to attend please advise the Committee and the other party in writing. You may make submissions in writing but generally these are not a substitute for evidence."
9 In February 1999, the appellant terminated the retainer of Bennett & Co and later retained Stanley & Co as its solicitors. The latter advised that Local Court action by the appellant should await the outcome of the Committee hearing and "should a claim be made based on any findings, he (Mr Said) should make a counterclaim in the Local Court".
(Page 5)
10 That advice was based upon a mistaken belief of the solicitor, acknowledged in an affidavit, that recovery of money pursuant to "any findings of the Building Disputes Committee would require (the respondents) to sue (the appellant) on such findings in the Local Court".
11 There was no attendance at the Committee hearing on behalf of the appellant.
12 The Committee issued an "order to pay" ($16,305) to the appellant. It bears date 26 March 1999, that is to say, two days after the hearing. Mr Said's affidavit of 20 May 1999 attests that the appellant did not "receive the decision of the Building Disputes Committee until late April 1999" and "I have been told, and I verily believe it to be so, that (the appellant's) solicitors did not receive any notification from the Building Disputes Committee".
13 An affidavit by Mr Stanley of Stanley & Co makes no mention of this matter. There is no affidavit from any representative of Bennett & Co. There was no material other than that to which I have referred from Mr Said touching this matter of the reason for delay.
14 In short, through Mr Said, the appellant explained the delay as arising from his misunderstanding of the jurisdiction of the Committee to make an order for payment as distinct from obtaining a court order based upon it, a misunderstanding reinforced by his legal adviser and the non-receipt of the "decision" of the Committee. Whether this is to be distinguished from receipt of the "order for payment" dated 26 March 1999 was not explored either in this Court or below. For present purposes and in the absence of contention by the respondents it may therefore be taken that the ignorance of the appellant was a relevant ignorance.
15 Save the reference to the span of time between the Committee's decision and the lodgment of the application to extend time, Blaxell DCJ did not address the issues arising from the delay in making the application, nor did he consider the extent to which the respondents might be prejudiced if "leave is granted". Leave is a requirement pursuant to s 41(2) of the Act and I would read his Honour's remark as intended to refer to extension of time in which to apply for leave. The correctness of his Honour's focus is confirmed by his following sentence in which precise reference to extension of time in which to apply for leave is made.
16 The learned Judge presiding at first instance directed his attention virtually exclusively to the prospects of success of the appellant's appeal
(Page 6)
- from the decision of the Committee. His conclusions are set out in this extract from his judgment:
"In Mr Said's second affidavit he raises issues of fact which are said to be the basis of a defence to the respondent's claims if there is ultimately a successful appeal. Without going into all of the details of these issues, it seems to me that they do not address the primary findings of fact on which the Committee's decision was based. In essence the Committee found that during a telephone conversation on 30 September 1998 and in correspondence dated 1 and 6 October 1998 the applicant repudiated its contract with the respondents. The respondents in turn by facsimiles dated 1 and 7 October validly terminated the contract. On the face of this correspondence, and in the absence of any alternative explanation being proffered, there can be no basis for questioning the findings as made by the Committee. In this regard the contents of the applicant's letters speak for themselves.
It follows in my view that regardless of the material that has come to light as a result of the present application, it cannot be reasonably argued that the Committee's decision was wrong or attended with sufficient doubt. Even if all of the evidence before me had been presented to the Committee, the essential findings would almost certainly have been the same. In these circumstances, and notwithstanding that the applicant acted as it did in reliance upon erroneous legal advice, it cannot be said that there will be substantial injustice if the Committee's decision is left unreversed."
"The appellant appeals on the grounds that the learned Judge erred in fact alternatively in fact and law alternatively in law:
(b) in finding that even if all the evidence before the learned Judge had been presented to the Committee the central findings of the Committee would almost certainly have been the same in that:
(i) the respondents did not accept any repudiation of the contract by the appellant;
(Page 7)
- (ii) the respondents may not have been entitled to terminate the contract on the ground that the appellant was unjustifiably demanding further payment in order to complete the works;
(iii) the findings of the Committee might have been different had the Committee had the benefit of hearing evidence from the appellant."
18 The reasons for decision of the Committee note that the evidence of Mr Wardman (one of the respondents) was that work pursuant to the swimming pool construction contract (1 October 1997), quotation for construction of retaining walls (11 November 1997) and construction of a spa (18 November 1997) had, during late 1997 and early 1998, been stalled. Without elaboration it was further stated that Mr Wardman had financial difficulties "at the time" and the next temporal reference made by the Committee is that on or about 30 September 1998 problems came to a head.
19 However, on 14 September 1998, the appellant had written to the respondents confirming a telephone conversation in which the appellant complained about alleged action by the respondents to acquire pavers, bullnosing and labour from sources other than the appellant despite existing contract. There is no finding as to the cause or reasons for the non-completion by that time other than the cryptic observation about financial difficulties. Exhibited to an affidavit in the District Court was a letter from the appellant to the respondents dated 1 October 1998 which made reference to "numerous delays on your part".
20 Insofar as the Committee found that a conversation on or about 30 September amounted to repudiation by the appellant, the facsimile transmission of that date from the respondents expressly affirms the desire for the appellant to "complete the job". That letter, prima facie, does not amount to acceptance of any repudiation.
21 In the letter of 1 October the appellant made reference to the contract work schedule and an assertion was made that the contract had "lapsed". Entry into a fresh agreement was invited.
22 Ultimately by further facsimile transmission on 2 October, the respondents alleged that the appellant was in breach of contract and seven days written notice of intention to terminate was given in accordance with terms thereof. Rather than a repudiation having been accepted, the terms of the letter suggest that the respondents regarded the contract as on foot
(Page 8)
- and they were exercising their rights under it to terminate it and sue for damages for breach.
23 The published reasons of the Committee refer to further exchanges culminating in a finding that the contract came to an end as a result of breach by the builder of his obligation to complete the works with effect from 9 October, that is, at the expiry of seven days' notice which had been given on 2 October. There was no finding concerning the claims of the appellant to have been excluded from the property.
24 The foregoing is not recorded to suggest any conclusion in favour of one party or the other, but to demonstrate whether there might appear to be arguable matters being advanced on behalf of the appellant. As Brennan CJ and McHugh J observed in Jackamarra: "Unless notices to extend time for appeals are to turn into full rehearsals for those appeals, appellate courts can only assess 'the merits' in a rough and ready way" at page 522. Gummow and Hayne JJ referred to the test to be applied in determining whether to terminate an action summarily before trial. Their Honours cited General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 where Barwick CJ had pointed out at pages 528 - 529:
"The test to be applied has been variously expressed; 'so obviously untenable that it cannot possibly succeed'; 'manifestly groundless'; 'so manifestly faulty that it does not admit of argument'; 'discloses a case which the court is satisfied cannot succeed'; 'under no possibility can there be a good cause of action'; 'be manifest that to allow them' (the pleadings) 'to stand would involve useless expense'.
At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or 'so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument'; 'so to speak apparent at a glance'."
25 They added:
"We do not think it useful to fasten upon one verbal formula in preference to all others as a description of the necessary degree of satisfaction. What must be shown is that it is clear that the appeal will fail and in that sense is not 'arguable' or not 'fairly arguable'. … But, of course, if formulae of the kind set out in
(Page 9)
- General Steel Industries Inc are applied in the case of an appeal, it is important to recall that the context is different. The boundaries of the field for debate between the parties on appeal have been set at trial. Before a proceeding has been tried there may well be considerable uncertainty about what evidence will be given and how that will affect the final identification of issues to be decided. Those uncertainties should have been largely resolved at trial and the material and the issues for consideration on appeal will ordinarily be readily identifiable."
26 The latter statements are of significance in a case such as the present where there was no appearance by the appellant or evidence from it at the "trial" before the Committee and the proceeding in the District Court was conducted in accordance with its procedures for the hearing of a notice of motion.
27 The materials such as are available do not, in my opinion, support a conclusion that the issue before the Committee must necessarily have been resolved against the appellant and consequently involve an order for it to pay the assessed sum of $16,305 or, as expressed in the District Court, a conclusion that it cannot reasonably be argued that the decision was wrong or attended with sufficient doubt.
28 In the light of that conclusion, it is unnecessary to explore other grounds. I would allow the appeal.
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