Grygiel v Baine

[2004] NSWCA 377

CITATION:	GRYGIELv BAINE & ORS [2004] NSWCA 377
HEARING DATE(S):	11 October 2004
JUDGMENT DATE:	12 October 2004
JUDGMENT OF:	Mason P at 1
DECISION:	Application dismissed with costs
CATCHWORDS:	Review of Registrar's decision - whether appeal incompetent - whether relevant decision was interlocutory - appeal from decision rejecting appeal to Supreme Court from Consumer, Trader & Tenancy Tribunal rejecting pleading amendment - whether appeal concerns a value of $100,000 or more - practice when competency challenged and appellant wishes to seek leave in the alternative. (D)
PARTIES :	Christopher Andrew GRYGIEL Anthony BAINE & ORS
FILE NUMBER(S):	CA 40373/04
COUNSEL:	Claimant: J Simpkins SC 1 & 3 Opponents: R Colquhoun 2 Opponent: E M Davies
SOLICITORS:	Claimant: The Builders Lawyer 1 & 3 Opponents: Massey Bailey 2 Opponent: Pricewaterhouse Coopers Legal

LOWER COURTJURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S):	SC 30088/03
LOWER COURT JUDICIAL OFFICER :	Master Malpass

CA 40373/04

MASON P

Tuesday 12 October 2004

Christopher Andrew GRYGIEL v Anthony BAINE & Ors

JUDGMENT

1 HIS HONOUR: This is a motion to review a decision of Registrar Schell dismissing an appeal as incompetent. The appeal was filed by the claimant Mr Grygiel, who is a builder. The appeal was from the order of Master Malpass dismissing with costs the claimant’s summons filed in the Common Law Division Administrative Law List.

2 The defendants to the summons that was dismissed by the Master were:

- first defendant, the husband of the second defendant, a member of the firm of Carroll & O’Dea, solicitors, and an alleged party to the building contract with the claimant;
- second defendant, the owner of the Vaucluse house at which building work was performed and an alleged party to the building contract. The first and second defendants together are the first opponents in the present motion and shall hereafter be referred to as the proprietors;
- third defendant, Albion Design and Construction Pty Limited, the second opponent in the present motion. This company (hereafter referred to as the architect) was involved in design work for the Vaucluse job;
- fourth defendant, Blakemore Electrical Services Pty Limited: this company is not involved in the motion;
-- fifth defendant, the members of the firm of Carroll & O’Dea, solicitors (hereafter the solicitors). These persons are collectively the third opponent in the motion;
- sixth defendant, the Consumer, Trader and Tenancy Tribunal (hereafter the Tribunal).

3 According to the allegations in the further amended statement of claim that the claimant wishes to file in the Tribunal, the claimant did building work for the proprietors on a “do and charge” basis and pursuant to an oral contract. A building dispute left the claimant claiming unpaid progress payments and damages as on a repudiation of contract. The proprietors were claiming that the work was defective, in consequence of which they had overpaid the claimant and/or had a claim for damages against him.

4 The claimant made a monetary claim in the Tribunal against the proprietors.…