Fair Trading Administration Corporation v Sleigh - [2000] NSWCA 73

Reported Decision: [2000] 48 NSWLR 512

New South Wales

Court of Appeal

CITATION: Fair Trading Administration Corporation v Sleigh [2000] NSWCA 73

FILE NUMBER(S): CA 40378/99

HEARING DATE(S): 09/12/99

JUDGMENT DATE:
6 April 2000

PARTIES :

Fair Trading Administration Corporation (Appellant)
Gregory John Sleigh (Respondent)

JUDGMENT OF: Priestley JA; Handley JA; Fitzgerald JA

LOWER COURT JURISDICTION : District Court

LOWER COURT
FILE NUMBER(S) : 8549/98

LOWER COURT
JUDICIAL OFFICER : Patten DCJ

COUNSEL: J. Basten QC / T. Lynch (Appellant)
K. Tapsell - Solicitor (Respondent)

SOLICITORS: Hunt & Hunt (Appellant)
Watkins Tapsell (Respondent)

CATCHWORDS: Statutory interpretation - operation of s 98(1) of the Building Services Corporation Act 1989 - entitlement of Fair Trading Administration Corporation to recover from builder for "bad workmanship" in residential building work when building owner cannot do so. - D

LEGISLATION CITED: Building Services Corporation Act 1989
Limitation Act 1969

DECISION: Appeal allowed with costs, judgment below set aside. Respondent's application to the District Court to dismiss the appellant's action is dismissed, with costs

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40378/99
DC 8549/98

PRIESTLY JA
HANDLEY JA
FITZGERALD JA
THURSDAY 6 APRIL 2000

FAIR TRADING ADMINISTRATION CORPORATION v
v
Gregory John SLEIGH

JUDGMENT

1 THE COURT: This is an appeal against a District Court judgment which summarily dismissed a claim made by the appellant against the respondent under subs 98(1) of the Building Services Corporation Act 1989 (the “BSC Act”). By subs 98(1) of the BSC Act, the appellant is entitled to recover “from the person by whom the residential building work concerned was done” an amount which the appellant has paid to a person who suffered loss from the “bad workmanship” of “the person by whom the residential building work concerned was done”. 2 The respondent is a builder who performed residential building work for Virginia and David Davies (the “owners”) under a contract dated 22 November 1991. 3 It is common ground that the owners are unable to recover any liabilities which they incurred due to his bad workmanship from the respondent because, in 1994, an arbitrator rejected their claim against the respondent on the basis that he had not been given a notice requiring him to remedy the defects alleged by the owners, as required by their contract with the respondent. 4 Pursuant to a claim made by the owners on 3 February 1996, the appellant paid them the amount of their alleged loss on the basis that they were entitled to indemnity in accordance with s 91 of the BSC Act and Form 4 in Schedule 1 of the Building Services Corporation Regulation 1990 (the “BSC Regulation”). 5 According to the respondent, the appellant’s District Court action to recover the amount which it paid to the owners from the respondent was correctly dismissed even if the owners reasonably incurred liabilities in rectifying defects due to his bad workmanship.
6 The appellant is entitled to recover the amount which it paid to the owners from…

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: [2000] NSWCA 73
Decision Date: 6 April 2000

CaseChat Overview and Summary

The Fair Trading Administration Corporation (the Corporation) appealed to the Court of Appeal of New South Wales against a decision of the District Court. The dispute concerned the Corporation's entitlement to recover from a builder for "bad workmanship" in residential building work, notwithstanding that the building owner was unable to recover from the builder themselves.

The central legal issue before the Court of Appeal was the proper construction and operation of section 98(1) of the *Building Services Corporation Act 1989* (NSW). Specifically, the court had to determine whether this provision permitted the Corporation to recover from a builder for defective work when the building owner, for reasons such as the expiry of a limitation period, could not pursue their own claim against the builder.

The Court of Appeal, in allowing the appeal, reasoned that section 98(1) of the Act was intended to provide a mechanism for the Corporation to recover from builders in circumstances where the builder's defective work had caused loss, even if the owner's direct claim was barred. The court interpreted the statutory language to mean that the Corporation's right to recover was not contingent upon the owner's ability to sue the builder at the time the Corporation sought recovery. The court found that the District Court had erred in dismissing the Corporation's action.

Consequently, the Court of Appeal allowed the appeal with costs, set aside the judgment of the District Court, and dismissed the respondent builder's application to dismiss the appellant Corporation's action, also with costs.

Orders

Orders of the court

Appeal allowed with costs, judgment below set aside. Respondent's application to the District Court to dismiss the appellant's action is dismissed, with costs

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Fair Trading Administration Corporation v Sleigh [2000] NSWCA 73
FILE NUMBER(S):	CA 40378/99
HEARING DATE(S):	09/12/99
JUDGMENT DATE:	6 April 2000
PARTIES :	Fair Trading Administration Corporation (Appellant) Gregory John Sleigh (Respondent)
JUDGMENT OF:	Priestley JA; Handley JA; Fitzgerald JA

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	8549/98
LOWER COURT JUDICIAL OFFICER :	Patten DCJ

COUNSEL:	J. Basten QC / T. Lynch (Appellant) K. Tapsell - Solicitor (Respondent)
SOLICITORS:	Hunt & Hunt (Appellant) Watkins Tapsell (Respondent)
CATCHWORDS:	Statutory interpretation - operation of s 98(1) of the Building Services Corporation Act 1989 - entitlement of Fair Trading Administration Corporation to recover from builder for "bad workmanship" in residential building work when building owner cannot do so. - D
LEGISLATION CITED:	Building Services Corporation Act 1989 Limitation Act 1969
DECISION:	Appeal allowed with costs, judgment below set aside. Respondent's application to the District Court to dismiss the appellant's action is dismissed, with costs