Fleming v Price - [2012] NSWDC 114

District Court

New South Wales

Medium Neutral Citation: Fleming v Price [2012] NSWDC 114
Hearing dates: 25 July 2012; written submissions to 1 August 2012
Decision date: 16 August 2012
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Appeal dismissed.
(2) Plaintiffs pay defendant's costs.
(3) Exhibits retained for 28 days.

Catchwords: CTTT APPEAL - whether findings that the defendant was not involved in residential building works other than as stated in the quotation and contract amounted to errors of law - costs - whether costs, including indemnity costs, should be awarded against the plaintiffs who had partial success in their claim against the defendant for defective carpentry works - costs order based on the plaintiffs' substantial delay and expense for a "meagre result" in a largely "unreasonable and untenable" claim - appeal dismissed
Legislation Cited: Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), ss 53 and 67
Consumer, Trader and Tenancy Tribunal Regulation 2009 (NSW), r 20
Home Building Act 1989 (NSW), s 3
Cases Cited: Catts v Shelswell (Home Building) [2011] NSWCTTT 70
Edyp and Ors v Brazbuild Pty Ltd [2011] NSWCA 218
Fleming v David Price Building Services (Home Building) [2011] NSWCTTT 616
Fligg v Owners Strata Plan 53457 [2012] NSWSC 230
Maconachie v Kullenberg and Ors [2005] NSWCA 294
Wright v Foresight Constructions Pty Ltd [2011] NSWCA 327
Texts Cited: -
Category: Principal judgment
Parties: First Plaintiff: Gregory Fleming
Second Plaintiff: Zoe Fleming
Defendant: David Price t/as David Price Building Services
Representation: Plaintiffs: Mr A Justice
Defendant: Mr S Williamson
Plaintiffs: Thomas Mitchell Solicitors
Defendant: Gillis Delaney Lawyers

File Number(s): 2012/34397
Publication restriction: None

Judgment

The plaintiffs, Mr and Mrs Fleming, by summons filed on 2 February 2012 seek orders as follows:

(1) The finding of Senior Member Connelly that the defendant was not involved in residential building works other than as stated in the first defendant's quotation to the second and third defendants dated 8 May 2006 be set aside.

(2) The order as to costs in the Tribunal proceedings be set aside.

The grounds of appeal are as follows:

(a) Senior Member Connelly erred in law in finding that the first defendant's liability was to be referenced by the quotation to the second and third defendants dated 8 May 2006, when he made an actual finding during the course of the hearing that liability of the first defendant was to be referenced by the agreement between the first defendant and the second and third defendant dated July 2006.

(b) Senior Member Connelly erred in law in finding that the certificate of insurance evidencing the involvement of the first defendant in residential building works at the premises was ineffective for the purpose of determining the first defendant's liability for residential building works undertaken at the premises.

(c) Senior Member Connelly erred in law in finding that the first defendant was not involved in residential building works at the property in May 2006 when the only objective evidence showed or tended to show that he was involved…

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 Fleming v Price

Details

AGLC: Fleming v Price [2012] NSWDC 114
Case: [2012] NSWDC 114
Decision Date: 16 August 2012

CaseChat Overview and Summary

In the case of Fleming v Price, the dispute arose from a claim by the plaintiffs, Fleming, against the defendant, Price, concerning alleged defective carpentry works. The matter was heard in the Court of Appeal of an Australian state or territory, with the primary judgment being appealed on the grounds of errors in law and the assessment of costs. The primary issue before the Court of Appeal was whether the trial judge's findings that the defendant was not involved in any residential building works other than as stated in the quotation and contract amounted to errors of law. Additionally, the Court was tasked with determining the appropriate costs order, including whether indemnity costs should be awarded against the plaintiffs who had partial success in their claim.

The Court of Appeal considered the evidence presented and the arguments made by both parties. The Court held that the trial judge's findings were not erroneous and correctly reflected the evidence provided. The Court further assessed the costs order, taking into account the substantial delay and expense incurred by the parties, and the meagre result achieved by the plaintiffs in what was largely an unreasonable and untenable claim. The Court found that the plaintiffs' claim was largely without merit and that their partial success was insufficient to warrant an award of costs against the defendant. Consequently, the Court ordered that the plaintiffs pay the defendant's costs.

In conclusion, the Court of Appeal dismissed the appeal and upheld the trial judge's findings and the costs order. The plaintiffs were ordered to pay the defendant's costs, and the exhibits were retained for 28 days. The decision reinforces the importance of properly assessing claims and the potential consequences of pursuing unreasonable or untenable litigation.

Orders

Orders of the court

(1) Appeal dismissed.

(2) Plaintiffs pay defendant's costs.

(3) Exhibits retained for 28 days.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Fleming v Price [2012] NSWDC 114
Hearing dates:	25 July 2012; written submissions to 1 August 2012
Decision date:	16 August 2012
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Appeal dismissed. (2) Plaintiffs pay defendant's costs. (3) Exhibits retained for 28 days.
Catchwords:	CTTT APPEAL - whether findings that the defendant was not involved in residential building works other than as stated in the quotation and contract amounted to errors of law - costs - whether costs, including indemnity costs, should be awarded against the plaintiffs who had partial success in their claim against the defendant for defective carpentry works - costs order based on the plaintiffs' substantial delay and expense for a "meagre result" in a largely "unreasonable and untenable" claim - appeal dismissed
Legislation Cited:	Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), ss 53 and 67 Consumer, Trader and Tenancy Tribunal Regulation 2009 (NSW), r 20 Home Building Act 1989 (NSW), s 3
Cases Cited:	Catts v Shelswell (Home Building) [2011] NSWCTTT 70 Edyp and Ors v Brazbuild Pty Ltd [2011] NSWCA 218 Fleming v David Price Building Services (Home Building) [2011] NSWCTTT 616 Fligg v Owners Strata Plan 53457 [2012] NSWSC 230 Maconachie v Kullenberg and Ors [2005] NSWCA 294 Wright v Foresight Constructions Pty Ltd [2011] NSWCA 327
Texts Cited:	-
Category:	Principal judgment
Parties:	First Plaintiff: Gregory Fleming Second Plaintiff: Zoe Fleming Defendant: David Price t/as David Price Building Services
Representation:	Plaintiffs: Mr A Justice Defendant: Mr S Williamson Plaintiffs: Thomas Mitchell Solicitors Defendant: Gillis Delaney Lawyers
File Number(s):	2012/34397
Publication restriction:	None