Field v Dettman

Case [2013] NSWCA 147

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Field v Dettman [2013] NSWCA 147
Hearing dates:24 April 2013
Decision date: 03 June 2013
Before: Beazley P at [1];
Meagher JA at [2];
Preston CJ of LEC at [3].
Decision:

1.  The Further Amended Summons is dismissed.

2.  The plaintiffs are to pay the defendant's costs of the proceedings.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: JUDICIAL REVIEW - determination of District Court dismissing appeal from decision of Consumer, Trader and Tenancy Tribunal on questions of law - application for certiorari to quash determination - restitution claim to recover monies paid to contractor contrary to the Home Building Act - whether District Court failed to find payment made under mistake as to requirement for contract to be in writing - such question not a ground of appeal in District Court - no error of law in failing to determine a question not in issue on appeal - whether Home Building Act precluded payee raising any "defence" to restitution claim - question not arising as entitlement to restitution not established - whether Home Building Act gives right of action to recover money paid to a contractor not entitled to receive money - no statutory right of action given
Legislation Cited: Consumer, Trader and Tenancy Tribunal Act 2001 s 67
Home Building Act 1989 ss 4(1), 7(1), 10, 18B, 48I(1), 92(1),(2), 94(1A)
Supreme Court Act 1970 ss 48(2), 69
Cases Cited: Alexander v Gregoriou [2010] NSWDC 15
Byrne v Australian Airlines Ltd (1995) 185 CLR 410
David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48; 175 CLR 353
Hills Industries Ltd v Australian Financial Services and Leasing Pty Ltd [2012] NSWCA 380; (2012) 295 ALR 147
Miller v Miller [2011] HCA 9; (2011) 242 CLR 446
O'Connor v S P Bray Pty Ltd (1937) 56 CLR 464
Sovar v Henry Lane Pty Ltd (1967) 116 CLR 397
X (Minors) v Bedfordshire County Council [1995] 2 AC 633
Category:Principal judgment
Parties: Jason Field (First Appellant)
Kim Field (Second Appellant)
Representation: Mr F Corsaro SC with Mr P J Bambagiotti (Appellants)
Mr G Jensen (Barrister) (Respondent)
Thomas Mitchell Solicitors (Appellants)
Gillis Delaney Lawyers (Respondent)
File Number(s):249898 of 2012
Publication restriction:No
 Decision under appeal 
Citation:
[2011] NSWDC 125
Date of Decision:
2011-08-31 00:00:00
Before:
Sidis DCJ
File Number(s):
00405209 of 2010

Judgment

  1. BEAZLEY P: I agree with Preston CJ of LEC.

  1. MEAGHER JA: I agree with Preston CJ of LEC that this application for judicial review should be dismissed. Only two grounds for relief were pressed before this Court. The…

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AGLC
Field v Dettman [2013] NSWCA 147
Case
[2013] NSWCA 147
Decision Date

CaseChat Overview and Summary

The plaintiffs, Field and others, sought judicial review by way of an application for certiorari to quash a determination of the District Court. The District Court had dismissed an appeal from a decision of the Consumer, Trader and Tenancy Tribunal concerning a restitution claim to recover monies paid to a contractor, Dettman, contrary to the provisions of the *Home Building Act 1989* (NSW). The proceedings were heard by Beazley P, Meagher JA, and Preston CJ of the Court of Appeal.

The central legal issues before the Court of Appeal were whether the District Court had erred in law by failing to find that payment was made under a mistake as to the requirement for the contract to be in writing, and whether this question constituted a valid ground of appeal to the District Court. Further, the Court considered whether the *Home Building Act* precluded the payee from raising any defence to a restitution claim, and whether the Act itself provided a statutory right of action to recover money paid to a contractor not entitled to receive it.

The Court of Appeal reasoned that the question of payment made under a mistake was not a ground of appeal before the District Court, and therefore, the District Court did not commit an error of law by failing to determine a question that was not in issue on the appeal. Regarding the *Home Building Act*, the Court found that the entitlement to restitution had not been established, meaning the question of whether the Act precluded defences did not arise. Crucially, the Court determined that the *Home Building Act* did not confer a statutory right of action to recover money paid to a contractor not entitled to receive it.

Consequently, the Court of Appeal dismissed the plaintiffs' Further Amended Summons and ordered that the plaintiffs pay the defendant's costs of the proceedings.

Orders

Orders of the court

1. The Further Amended Summons is dismissed.

2. The plaintiffs are to pay the defendant's costs of the proceedings.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

PRESTON CJ

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Ratio Decidendi

Legal Principle Established

Established by: PRESTON CJ

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