PARTIES: Christopher Andrew Grygiel (Claimant) Anthony J. Baine & Janice Wiley (First Opponents) Albion Design and Construction Pty Ltd (Second Opponent) Carroll & O'Dea, Solicitors and Attorney (Third Opponents)
JUDGMENT OF: Mason P Bryson JA Basten JA
LOWER COURT JURISDICTION: Supreme Court
LOWER COURT FILE NUMBER(S): SC 3088/03
LOWER COURT JUDICIAL OFFICER: Master Malpass
COUNSEL: J Simpkins SC, V Zipser (Claimant) E Olsson SC (First Opponents) R Colquhoun (Third Opponents)
CATCHWORDS: Building dispute in Consumer, Trader and Tenancy Tribunal - whether builder permitted to join his company as co-plaintiff - finding by Tribunal that company not a party to the contract - cross claim against the company still on foot - whether Tribunal erred in refusing application - jurisdiction of Tribunal - meaning of "building claim" under s49A of the Home Building Act 1989 (NSW) - whether legal services supplied by homeowner to builder gave rise to a building claim - whether law firm of which homeowner was a partner could be joined as defendant - collateral contract - whether there was a contract collateral to a contract for the supply of building goods and services.
DECISION: (1) Grant leave to the Claimant to appeal against so much of the judgment and orders of the Master as held that the Tribunal had no jurisdiction to consider the proposed claim against Anthony James Baine and the Third Opponents (the law firm) (2) Allow the appeal with respect to that matter and set aside the judgment of the Master in that regard (3) Set aside the decision of the Tribunal as to its jurisdiction in relation to the proposed claims against Mr Baine and the law firm with respect to the provision of legal advice in relation to the supply of building goods and services to the First Opponent (4) Remit the matter to the Tribunal for further consideration of those claims (5) Order that Anthony James Baine pay the Claimant one-half of his costs (i) of the appeal before the Master; and (ii) of the proceedings in this Court (6) Otherwise dismiss the application for leave to appeal
JUDGMENT:
IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL
CA 40673/04 SC 3088/03
MASON P BRYSON JA BASTEN JA
29 June 2005
CHRISTOPHER ANDREW GRYGIEL v ANTHONY J. BAINE & JANICE WILEY & ORS
This appeal concerns a building…
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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AGLC
Grygiel v Baine [2005] NSWCA 218
Case
[2005] NSWCA 218
Decision Date
CaseChat Overview and Summary
The proceedings involved a building dispute before the Consumer, Trader and Tenancy Tribunal (CTTT). The claimant, Mr Grygiel, sought to join his company as a co-plaintiff, arguing that the company was a party to the contract. The Tribunal found the company was not a party to the contract but that a cross-claim against the company remained on foot. The claimant also sought to join a law firm, of which the homeowner was a partner, as a defendant, alleging the firm provided legal services that gave rise to a building claim. The central dispute concerned the Tribunal's jurisdiction to consider these proposed claims and whether it erred in refusing the applications to join the company and the law firm.
The court was required to determine whether the CTTT had jurisdiction to consider the proposed claims against Mr Baine and the law firm concerning the provision of legal advice in relation to the supply of building goods and services. This involved an examination of the meaning of "building claim" under s 49A of the Home Building Act 1989 (NSW) and the scope of the Tribunal's jurisdiction under s 67 of the CTTT Act, particularly in relation to interlocutory decisions and the joinder of parties. The court also considered whether a collateral contract existed between the homeowner and the builder.
The court's reasoning focused on the interpretation of s 67 of the CTTT Act, which permits appeals to the Supreme Court on a matter of law. It noted that while the provision does not explicitly require leave to appeal, the discretionary nature of prerogative relief and the potential for interlocutory rulings to be binding on parties suggested that a requirement for leave might be appropriate. The court drew parallels with decisions concerning appeals from administrative tribunals, highlighting that appeals generally lie from effective or final decisions, unless the proceedings can be divided into separate parts with independent decisions. The court found that the Tribunal's decision on its jurisdiction in relation to the proposed claims against Mr Baine and the law firm constituted a separate and determinative decision that could be the subject of an appeal.
The court granted leave to appeal and allowed the appeal in part, setting aside the Master's judgment and the Tribunal's decision regarding its jurisdiction over the proposed claims against Mr Baine and the law firm. The matter was remitted to the Tribunal for further consideration of those claims. The court also ordered Mr Baine to pay the claimant half of his costs for the appeal before the Master and the proceedings in the Supreme Court. The application for leave to appeal was otherwise dismissed.
Orders
Orders of the court
(1) Grant leave to the Claimant to appeal against so much of the judgment and orders of the Master as held that the Tribunal had no jurisdiction to consider the proposed claim against Anthony James Baine and the Third Opponents (the law firm)
(2) Allow the appeal with respect to that matter and set aside the judgment of the Master in that regard
(3) Set aside the decision of the Tribunal as to its jurisdiction in relation to the proposed claims against Mr Baine and the law firm with respect to the provision of legal advice in relation to the supply of building goods and services to the First Opponent
(4) Remit the matter to the Tribunal for further consideration of those claims
(5) Order that Anthony James Baine pay the Claimant one-half of his costs
(i) of the appeal before the Master; and
(ii) of the proceedings in this Court
(6) Otherwise dismiss the application for leave to appeal
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
The jurisdiction of the Court was invoked pursuant to s 67 of the CTTT Act, which, so far as relevant, reads as follows:“67 Appeal against decision of Tribunal with respect to matter of law(1)If, in respect of any proceedings, the Tribunal decides a question with respect to a matter of law, a party in the proceedings who is dissatisfied with the decision may, subject to this section, appeal to the Supreme Court against the decision.(2)An appeal is to be made in accordance with the rules of the Supreme Court. The rules of the Supreme Court may provide that an appeal (or such classes of appeal as may be specified in the rules) may be made only with the leave of the Court.”This Court has held that this terminology should not be given an unduly wide construction, in part because it does not lend itself to such a construction and also because there is separate provision in s 65 in relation to prerogative relief: see generally Kalokerinos v HIA Insurance Services Pty Ltd [2004] NSWCA 312 at [38]-[58] (Bryson JA). There is no provision in the Supreme Court Rules requiring leave: the fact that prerogative relief is discretionary and not generally available in relation to decisions which are not final and determinative, suggests that a requirement for leave to appeal under s 67(2) would have much to commend it. An argument might be available that the reference to “the decision” in s 67(1) is a reference to final and operative decisions. However, such an argument would need to address the reasoning of this Court in Custom Credit Corporation Ltd v Commercial Tribunal of New South Wales (1993) 32 NSWLR 489. That case dealt with the right of appeal under s 20 of the Commercial Tribunal Act 1984 (NSW), now repealed. The current provision is in very similar, though not identical terms to s 20. One difference, which may be significant, is that s 20 of the Commercial Tribunal Act included a subsection to the following effect:“(10)For the purposes of this section, a reference to a matter of law includes a reference to a matter relating to the jurisdiction of the Tribunal and a matter as to the admission or rejection of evidence.”In Custom Credit, Gleeson CJ placed some emphasis on the clear implication to be derived from this last provision that interlocutory rulings on questions of evidence might be the subject of appeal. By contrast, subsection 67(8) in the CTTT Act omits reference to the admission or rejection of evidence. A more restricted approach would also be consistent with the authority of the Full Court of the Federal Court in Director-General of Social Services v Chaney (1980) 31 ALR 571, in relation to appeals under the Administrative Appeals Tribunal Act 1975 (Cth). Deane J (Fisher J agreeing) held that, subject to two qualifications, “an appeal under s 44(1) of the Act lies only from a decision of the Tribunal which constitutes the effective decision or determination of the application for review”: 31 ALR at 393(25). One qualification concerned a specific statutory exception, the other being “the case where the proceedings before the Tribunal can properly be divided into two or more separate parts in respect of which independent ‘decisions’ may properly be given.” That conclusion was applied by a later Full Court in Geographical Indications Committee v The Hon Justice O’Connor [2000] FCA 1877, the Court also holding that directions given by the AAT pursuant to s 33 of the AAT Act did not constitute “the making of a decision” within the meaning of s 3 of the Administrative Decisions (Judicial Review) Act 1997 (Cth). A clear example of a separate decision, of the kind discussed above, may be identified in the determinations made by the Court pursuant to s 7A of the Defamation Act 1974 (NSW). In relation to the earlier practice of this Court with respect to such issues, see David Syme & Co Ltd v Lloyd [1984] 3 NSWLR 346 at 348-349 (Glass JA), referred to in Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 at [8], in considering an appeal from the decision of a trial judge dispensing with a jury. See also Lloyd v David Syme & Co Ltd (1985) 3 NSWLR 727, 729G (PC). How broadly the net should be cast need not be determined in the present circumstances, but may be illustrated by cases in which leave to appeal from interlocutory decisions is granted, with the result that an order is made which is binding on the parties and the Court below: see O’Toole v Charles David Pty Ltd (1991) 171 CLR 232 at 245 (Mason CJ) and see also Amalgamated Television Services Pty Ltd v Marsden [1999] NSWCA 313 at [34] (Mason P).