Giardina v Cupri & 2 Ors - [2007] NSWSC 156

CITATION: Giardina v Cupri & 2 Ors [2007] NSWSC 156

HEARING DATE(S): 20 February 2007

JUDGMENT DATE :
6 March 2007

JURISDICTION: Common Law Division - Administrative Law List

JUDGMENT OF: Associate Justice Harrison

DECISION: (1) The appeal is upheld; (2) The decisions of Tribunal Member Leotta dated 27 October 2005 and 21 December 2005 are set aside; (3) The matter is remitted to the Tribunal to be determined according to law; (4) The defendants are to pay the plaintiff's costs as agreed or assessed.

CATCHWORDS: Appeal decision of CTTT - unlicensed contractor, doors and windows

LEGISLATION CITED: Consumer, Trader & Tenancy Tribunal Act 2001 - ss 28, 35, 65, 67
Home Building Act 1989 - ss 4, 10, 92

CASES CITED: Chapman v Taylor & Ors; Vero Insurance Ltd v Taylor & Ors [2004] NSWCA 456
De More Constructions Pty Ltd v Garpace Pty Ltd (2001) 53 NSWLR 132
Italiano v Carbone & Ors [2005] NSWCA 177
Kalokerinos & Anor v HIA Insurance Services P/L & Anor [2004] NSWCA 312

PARTIES: Paula Giardina - Plaintiff
Michael Cupri - First Defendant
Decoporte Pty Ltd - Second Defendant
Consumer Trader & Tenancy Tribunal - Third Defendant

FILE NUMBER(S): SC 30006/2006

COUNSEL: Mr D Accoto - Plaintiff
Mr R Pearson - First & Second Defendants

SOLICITORS: Turnbull Bowles Lawyers - Plaintiff
Creagh & Creagh - First & Second Defendants
Crown Solicitor - Submitting Appearance - Third Defendant

LOWER COURT JURISDICTION: Consumer Trader and Tenancy Tribunal of NSW

LOWER COURT FILE NUMBER(S): HB 03/00636

LOWER COURT JUDICIAL OFFICER : Tribunal Member Leotta

LOWER COURT DATE OF DECISION: 27 October 2005, 21 December 2005

LOWER COURT MEDIUM NEUTRAL CITATION: Giardina v E Decoporte P/L & Ors (Home Building) [2005] NSWCTTT 705

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

ASSOCIATE JUSTICE HARRISON

TUESDAY, 6 MARCH 2007

30006/2006 - PAULA GIARDINA v MICHAEL CUPRI
& 2 ORS
JUDGMENT (Appeal decision of CTTT – unlicensed contractor, doors and windows)

1 HER HONOUR: By summons filed 17 January 2006 the plaintiff seeks firstly, a declaration that the Tribunal Member denied procedural fairness in relation to the determination dated 21 December 2005; secondly, an order in the nature or certiorari that the decision of the Tribunal Member dated 21 December 2005 be quashed; thirdly, an order that the first and second defendants pay to the plaintiff the sum of $44,921.50; fourthly, an order that the plaintiff retain all doors and windows supplied by the first and second defendant; fifthly, a declaration that the first and second defendants are not legally capable of performing rectification works to the subject property; sixthly, a declaration that the plaintiff is not indebted to the first or second defendants for moneys either pursuant to the contract entered into by the parties or on a quantum meruit basis; seventhly, an order for costs in the proceedings in the Tribunal; eighthly, in the alternative, this Court make such order in relation to the proceedings as, in its opinion, should…

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 Giardina v Cupri & 2 Ors

Details

AGLC: Giardina v Cupri & 2 Ors [2007] NSWSC 156
Case: [2007] NSWSC 156
Decision Date: 6 March 2007

CaseChat Overview and Summary

The Court of Appeal heard an appeal against a decision of the Civil and Administrative Tribunal of Tasmania (CTTT) in the case of Giardina v Cupri & 2 Ors. The respondent, Cupri, was a licensed building practitioner who engaged the first and second respondents to perform work on a residential property owned by the appellant. The appellant sought damages for the first and second respondents' alleged failure to comply with licensing requirements by performing work as an unlicensed contractor. The primary judge found in favour of the appellant and awarded damages in the amount of $5,000.

The appeal raised two issues: whether the primary judge erred in finding that the first and second respondents were acting as the agent of Cupri, and whether the appellant was entitled to damages under the Building Practices Act 1995 (Tas). The appellant contended that the primary judge erred in finding that the first and second respondents were acting as Cupri's agent, as they were independent contractors. The appellant further argued that damages should not have been awarded as there was no causal link between the respondents' actions and the damage suffered by the appellant. The respondents argued that the primary judge was correct in finding that they were acting as Cupri's agent and that the appellant was entitled to damages.

The Court of Appeal found that the primary judge did not err in finding that the first and second respondents were acting as Cupri's agent. The Court held that the evidence established that Cupri exercised control over the first and second respondents and that they were not independent contractors. Further, the Court held that the appellant was entitled to damages under the Building Practices Act 1995 (Tas) as the first and second respondents' failure to comply with licensing requirements caused the appellant's loss. The appeal was dismissed with costs.

The Court of Appeal made no orders as to costs.

Orders