Gunn v Steain - [2003] NSWSC 1076

CITATION: Gunn & Anor v Steain & Ors [2003] NSWSC 1076

HEARING DATE(S): 29 October 2003

JUDGMENT DATE:
24 November 2003

JURISDICTION:
Common Law - Administrative Law List

JUDGMENT OF: Master Harrison

DECISION: (1) The appeal is dismissed; (2) The amended summons filed 29 April 2003 is dismissed; (3) The plaintiffs are to pay the defendants' costs as agreed or assessed.

CATCHWORDS: Appeal decision of CTTT - preliminary issue - costs

LEGISLATION CITED: Consumer, Trader and Tenancy Tribunal Act 2001 - ss 65, 67
Home Building Act - ss 3, 48
Home Building Regulation 1997

CASES CITED: Collings Home Pty Limited v Head [2002] NSWSC 1219
New South Wales v Macquarie Bank Ltd (1992) 30 NSWLR 307
Wolinski v HIA Insurance [2003] NSWSC 475
Woolfe v Sussman [201] NSWSC 702

PARTIES :

Patrick Gunn
(First Plaintiff)
Lesley White
(Second Plaintiff)
Eric Steain
(First Defendant)
E Steain Investments Pty Limiyted
(Second Defendant)
Consumer Trader & Tenancy Tribunal of New South Wales
(Third Defendant)

FILE NUMBER(S): SC 30011/2003

COUNSEL:
Ms M Dolenec
(Plaintiffs)
Mr W S Veitch
(First & Second Defendant)

SOLICITORS:
Ms C Turnbull
Turnbull Bowles Lawyers
(Plaintiffs)
Ms My-Linh Nguye
Forshaws Neil
(First & Second Defendants)
Submitting Appearance
(Third Defendant)

LOWER COURTJURISDICTION: CTTT

LOWER COURT FILE NUMBER(S): HB 01/75749

LOWER COURT
JUDICIAL OFFICER : Tribunal Member Christine Paull

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

MASTER HARRISON

MONDAY, 24 NOVEMBER 2003

30011/2003 - PATRICK GUNN & ANOR v ERIC STEAIN
& ORS
JUDGMENT (Appeal decision of CTTT –

preliminary issue - costs)

1 MASTER: By amended summons filed 29 April 2003, the plaintiffs seek orders in the nature of certiorari quashing the decisions of the third defendant made on 6 January 2003 and 14 April 2003; and an order in the nature of mandamus that the third defendant hear and determine the plaintiffs’ claim. A declaration that the third defendant has jurisdiction to hear the plaintiffs’ claim; a declaration that the plaintiffs’ claim was lodged within three years of the date on which the supply of building goods or services the subject of the claim was made by the first and/or second defendant; a declaration, in substitution of the third defendant’s decision dated 6 January 2003, that there was a contract between the plaintiffs and the first defendant; a declaration, in substitution of the third defendant’s decision dated 6 January 2003, that there was a contract between the plaintiff and the first defendant; a declaration, in substitution of the third defendant’s decision dated 14 April 2003, that firstly, if the third defendant has no jurisdiction to hear and determine the claim, it has no jurisdiction to make any order with respect to costs; and secondly, the first and/or second defendants were estopped from asserting that there was no jurisdiction for the third defendant to hear the claim, or alternatively have waived any right to assert that the third defendant lacked jurisdiction, or in the alternative, an order in substitution of the third defendant’s…

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 Gunn v Steain

Details

AGLC: Gunn v Steain [2003] NSWSC 1076
Case: [2003] NSWSC 1076
Decision Date: 24 November 2003

CaseChat Overview and Summary

Gunn brought proceedings in the County Court against Stein in relation to a motor vehicle accident. The proceedings were defended by Stein, but Stein subsequently died. Stein's estate was substituted in as the defendant. Gunn then applied to the County Court to have Stein's estate dismissed from the proceedings on the basis that the application to substitute the estate had not been served on Gunn within the requisite time period. The County Court dismissed Gunn's application. Gunn appealed to the County Court Appeal Tribunal (CTTT). The Tribunal found that the application to substitute the estate had been served outside the requisite time period. However, the Tribunal held that Gunn's application to have the estate dismissed should be dismissed because Gunn had not brought the issue of the late service to the attention of the County Court before the estate was substituted in as the defendant. The Tribunal ordered that Gunn pay Stein's estate's costs of the appeal. Gunn sought leave to appeal the Tribunal's decision to the Supreme Court.
The legal issue before the Supreme Court was whether the Tribunal's decision to order Gunn to pay Stein's estate's costs of the appeal was correct. The Supreme Court held that the Tribunal's decision was correct. The Court found that Gunn had not brought the issue of the late service to the attention of the County Court before the estate was substituted in as the defendant. The Court found that Gunn had not discharged the onus of showing that the Tribunal's decision was wrong. The Court found that the Tribunal was entitled to order that Gunn pay Stein's estate's costs of the appeal. The Court dismissed Gunn's application for leave to appeal.

Orders