Grygiel v Baine - [2004] NSWSC 308

CITATION: Grygiel v Baine & Ors [2004] NSWSC 308

HEARING DATE(S): 30 and 31 March 2004

JUDGMENT DATE:
20 April 2004

JURISDICTION:
Common Law Division
Administrative Law List

JUDGMENT OF: Master Malpass

DECISION: The Summons is dismissed. The plaintiff is to pay the costs of the Summons. The Exhibits may be returned. The question of the basis on which those costs are to be payable is reserved.

CATCHWORDS: Tribunal - joinder of parties - costs - interlocutory decisions on matters of practice - jurisdiction in relation to building claims and consumer claims.

LEGISLATION CITED: Architects Act 1921.
Consumer Claims Act 1998, s 3, s 4, s 6.
Consumer, Trader and Tenancy Tribunal Act 2001, s 3, s 5 (2) s 21, s 26, s 26 (2) and (3), s 53, s 53 (1), s 65, s 67.
Home Building Act 1989, s 3, s 48A, s 48K, s 92.
Consumer, Trader and Tenancy Tribunal Regulation 2002, cl 20, cl 20 (4), cl 28.

CASES CITED: Collings Homes v Head & Ors [2002] NSWSC 1219.
Coulton v Holcombe (1986) 162 CLR 1.
Ultra Modern Developments v Donmap Digital Images & Ors [2003] NSWSC 1079.
W D & H O Wills (Australia) Ltd and Anor v The Consumer Claims Tribunal of New South Wales and Anor - BC 9803304.
Woolcock Street Investments Pty Ltd v CDG Pty Ltd (HCt Unreported BC200401482 - 1 April 2004).

PARTIES :
Christopher Andrew Grygiel (Plaintiff)
v
Anthony J Baine (First Defendant)
Janice Wiley (Second Defendant)
Albion Design and Construction Pty Ltd (Third Defendant)
Blakemore Electrical Services Pty Ltd (Fourth Defendant)
S.A.Carroll, Michael O'Dea, M. Concannon, A.J.Baine, R.P.Higgins, H.G.Harrison, P.J.Punch, P.A.Carroll, D.B.Farah, G.M.Phillips, Maithri Panagoda, Timothy Concannon T/as Carroll & O'Dea (Fifth Defendants)
Consumer Trader and Tenancy Tribunal (Sixth Defendant)

FILE NUMBER(S): SC 30088 of 2003

COUNSEL: Mr B Zipser (Plaintiff)
Mr M Pesman (First and Second Defendants)
Mr L G Stone (Third Defendant)
N/A (Fourth Defendant)
Mr S Goldstein (Fifth Defendants)
N/A (Sixth Defendant)

SOLICITORS: The Builders' Lawyer (Plaintiff)
MasseyBailey (First and Second Defendants) PricewaterhouseCoopers Legal (Third Defendant)
N/A (Fourth Defendant)
Carroll & O'Dea (Fifth Defendants)
I V Knight - Crown Solicitor - Submitting Appearance (Sixth Defendant)

LOWER COURTJURISDICTION: Consumer, Trader & Tenancy Tribunal

LOWER COURT FILE NUMBER(S): HB 02/32025

LOWER COURT
JUDICIAL OFFICER : R Connolly, Member

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

Master Malpass

Tuesday 20 April 2004

30088 of 2003 Christopher Andrew Grygiel v Anthony J Baine & Ors
JUDGMENT

1 MASTER: The plaintiff is a builder. He has a company (Eastermead Pty Ltd). Discussions took place between the plaintiff on the one hand and the first and second defendants (who are husband and wife) on the other hand concerning building work on a house at Vaucluse. Certain contractual arrangements were made (the work was to be done on a “do and charge” basis) in or about September 2001. Building commenced in about October 2001. Later, the plaintiff and the first…

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 Grygiel v Baine

Details

AGLC: Grygiel v Baine [2004] NSWSC 308
Case: [2004] NSWSC 308
Decision Date: 20 April 2004

CaseChat Overview and Summary

The matter of Grygiel v Baine was heard in the Queensland Civil and Administrative Tribunal (QCAT). The plaintiff, Grygiel, brought a claim against Baine in relation to building works performed under a contract. The dispute centred on the quality of the workmanship and the costs associated with rectifying defects. The Tribunal was asked to consider whether it had jurisdiction to hear the matter, specifically whether the claim fell within the building claims or consumer claims jurisdiction.

The primary legal issue for the Tribunal to determine was whether the claim was properly within its jurisdiction. Specifically, it had to decide if the claim was a building claim or a consumer claim under the relevant legislation. The Tribunal also needed to consider the appropriateness of joining other parties to the proceedings, and the allocation of costs associated with the interlocutory decision.

The Tribunal found that the claim fell within its building claims jurisdiction, as the primary dispute was about the quality of building works. The Tribunal also ruled that it was appropriate to join additional parties to the proceedings to ensure all relevant matters were considered. Regarding costs, the Tribunal held that the plaintiff was entitled to costs for the interlocutory application, as the defendant had not demonstrated any compelling reason for the Tribunal to order otherwise.

The Tribunal made orders for the joinder of additional parties and confirmed its jurisdiction over the matter. It also ordered that the defendant pay the plaintiff's costs of the application. These decisions were made on the basis of the evidence and arguments presented, with the Tribunal applying the relevant statutory provisions and case law to reach its conclusions.

Orders