Kostas v HIA Insurance Services Pty Ltd

The High Court of Australia considered an appeal from the Court of Appeal of New South Wales concerning the termination of a building contract. The appellants, Mr and Mrs Kostas, sought to terminate the contract due to alleged failures by the builder, SCC. The validity of this termination hinged on whether SCC had validly served claims for extensions of time under the contract. HIA Insurance Services Pty Ltd, as the respondent, contended that these claims had been properly sent, thereby extending the completion date and invalidating the Kostas' termination.

The central legal issue before the High Court was whether the Consumer, Trader and Tenancy Tribunal (NSW) had decided a "question with respect to a matter of law" within the meaning of section 67(1) of the *Consumer, Trader and Tenancy Tribunal Act 2001* (NSW), thereby conferring jurisdiction on the Supreme Court to hear an appeal. Specifically, the court had to determine if the Tribunal's finding that the extension of time claims had been served, despite the Kostas' evidence of non-receipt and lack of direct evidence of despatch, constituted a question of law, or if a "no evidence ground" could raise such a question.

The High Court reasoned that the Tribunal's finding that the notices were validly served, without specifying the evidence upon which it relied and without reference to the contractual provisions for service, was a finding of fact. The Tribunal's adverse credibility findings against the Kostas, which formed the apparent sole basis for its conclusion, did not elevate a factual determination into a question of law. The court held that a "no evidence ground" could only raise a question of law if there was no evidence at all to support a finding, which was not the case here, as there was some evidence before the Tribunal, albeit disputed. Therefore, the Tribunal had not decided a question of law, and the Supreme Court lacked jurisdiction to hear the appeal.

Consequently, the High Court allowed the appeal, set aside the order of the Court of Appeal, and ordered that the appeal to that Court be dismissed with costs. The first respondent was ordered to pay the costs of the appellants.