Grace v Pepe - [2014] NSWDC 259

District Court

New South Wales

Medium Neutral Citation: Grace v Pepe [2014] NSWDC 259
Hearing dates: 26, 27 and 28 November 2014
Decision date: 01 December 2014
Jurisdiction: Civil
Before: P Taylor SC DCJ
Decision:
(1) Allow the appeal.
(2) Remit my decision on the questions set out in these reasons to the Tribunal and order a rehearing of the proceedings by the Tribunal pursuant to s 67(3)(b) of the Consumer, Trader and Tenancy Tribunal Act 2001.
(3) Order the costs of the appeal (excluding the plaintiff’s costs of the first day of hearing) be costs in the Tribunal, to abide the determination by the Tribunal of the costs in the Tribunal.
(4) By consent, grant liberty to either party to apply to this Court in respect of a Suitors’ Fund Act 1951 Certificate, in respect of the costs of these proceedings, after the determination of the rehearing by the Tribunal.

Catchwords: APPEAL FROM CONSUMER, TRADER AND TENANCY TRIBUNAL, building contract - validity of owners’ notice of termination - validity of suspension by owners - validity of suspension by builder - validity of notice to rectify
Legislation Cited: Consumer, Trader and Tenancy Tribunal Act 2001, s 67
Suitors’ Fund Act 1951
Cases Cited: Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337
Edyp and Ors v Brazbuild Pty Ltd [2011] NSWCA 218
Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603
Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32
Progressive Mailing House Pty Ltd v Tabali Pty Ltd [1985] HCA 14
Category: Principal judgment
Parties: Sam Grace trading as Grace Design and Construction (plaintiff)
Anthony Pepe (first defendant)
Sophia Pepe (second defendant)
Representation:
Counsel:
Mr K Ginges (plaintiff)
Mr R Zikmann (defendants)
Solicitors:
Adams & Partners Lawyers (plaintiff)
John Lloyd and Co (defendants)

File Number(s): 2013/308287

Judgment

INTRODUCTION

This is a residential building case. It arises on an appeal from a decision of the Consumer, Trader and Tenancy Tribunal (“the Tribunal”) between the builder, Sam Grace, and the owners, Anthony and Sophia Pepe.

THE CONTRACT

On 6 March 2010 the owners and the builder entered into a contract for building works. The contract included the following provisions:

“6. Commencement, purpose of and completion of work
(a)(i) The Owner must give the Builder possession of such parts of the work site as is reasonably required to allow work to proceed.
…

7. Progress Payments
…
(a) Claims for payment are to relate to the work done…
(b) The Builder should submit payment claims for the value of work carried out and costs incurred at the frequency specified in Schedule 4 point (i). If no selection is made then invoicing for work done approximately every fortnight will apply.
(c) The Owner is to pay progress payments to the Builder in accordance with Schedule 4 point (ii) or if it is left blank the Owner must make payment within five (5) days of receipt of the Builder’s invoice (‘the due date’).
…
(e) If…

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 Grace v Pepe

Details

AGLC: Grace v Pepe [2014] NSWDC 259
Case: [2014] NSWDC 259
Decision Date: 01 December 2014

CaseChat Overview and Summary

The appeal in Grace v Pepe involved the respondents, the owners of a building, and the appellant, a builder. The dispute centred on the validity of various notices and suspensions that occurred in the course of a building contract. The matter was heard in the Supreme Court of Victoria, where the Court was tasked with reviewing the decision of the Consumer, Trader and Tenancy Tribunal.

The central legal issues the Court needed to address were the validity of an owners’ notice of termination, the validity of the owners’ suspension of the contract, the validity of the builder’s suspension, and the validity of a notice to rectify issued by the owners. These issues were pivotal in determining whether the Tribunal had correctly interpreted the applicable statutory provisions and the contractual terms. The Court had to consider whether the notices and suspensions were in compliance with the statutory requirements and whether they were justified under the contract.

In its reasoning, the Court found that the Tribunal had erred in its interpretation and application of the statutory provisions and the contract. The Court concluded that the Tribunal had overlooked certain key provisions and had not properly applied the law to the facts of the case. As a result, the Court allowed the appeal, finding that the Tribunal’s decision was incorrect and that a rehearing was necessary. The Court remitted the questions back to the Tribunal for a fresh determination in accordance with the law. The Court also ordered that the costs of the appeal be costs in the Tribunal, to be determined by the Tribunal after the rehearing. Additionally, by consent, the Court granted liberty to either party to apply for a Suitors’ Fund Act 1951 Certificate in respect of the costs of the proceedings after the rehearing.

Orders

Orders of the court

(1) Allow the appeal.

(2) Remit my decision on the questions set out in these reasons to the Tribunal and order a rehearing of the proceedings by the Tribunal pursuant to s 67(3)(b) of the Consumer, Trader and Tenancy Tribunal Act 2001.

(3) Order the costs of the appeal (excluding the plaintiff’s costs of the first day of hearing) be costs in the Tribunal, to abide the determination by the Tribunal of the costs in the Tribunal.

(4) By consent, grant liberty to either party to apply to this Court in respect of a Suitors’ Fund Act 1951 Certificate, in respect of the costs of these proceedings, after the determination of the rehearing by the Tribunal.

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:	Grace v Pepe [2014] NSWDC 259
Hearing dates:	26, 27 and 28 November 2014
Decision date:	01 December 2014
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	(1) Allow the appeal. (2) Remit my decision on the questions set out in these reasons to the Tribunal and order a rehearing of the proceedings by the Tribunal pursuant to s 67(3)(b) of the Consumer, Trader and Tenancy Tribunal Act 2001. (3) Order the costs of the appeal (excluding the plaintiff’s costs of the first day of hearing) be costs in the Tribunal, to abide the determination by the Tribunal of the costs in the Tribunal. (4) By consent, grant liberty to either party to apply to this Court in respect of a Suitors’ Fund Act 1951 Certificate, in respect of the costs of these proceedings, after the determination of the rehearing by the Tribunal.
Catchwords:	APPEAL FROM CONSUMER, TRADER AND TENANCY TRIBUNAL, building contract - validity of owners’ notice of termination - validity of suspension by owners - validity of suspension by builder - validity of notice to rectify
Legislation Cited:	Consumer, Trader and Tenancy Tribunal Act 2001, s 67 Suitors’ Fund Act 1951
Cases Cited:	Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 Edyp and Ors v Brazbuild Pty Ltd [2011] NSWCA 218 Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32 Progressive Mailing House Pty Ltd v Tabali Pty Ltd [1985] HCA 14
Category:	Principal judgment
Parties:	Sam Grace trading as Grace Design and Construction (plaintiff) Anthony Pepe (first defendant) Sophia Pepe (second defendant)
Representation:	Counsel: Mr K Ginges (plaintiff) Mr R Zikmann (defendants) Solicitors: Adams & Partners Lawyers (plaintiff) John Lloyd and Co (defendants)
File Number(s):	2013/308287