Koutoulas v Strangas and Son Building Contractors Pty Ltd

[2013] NSWSC 1260

Supreme Court

New South Wales

Medium Neutral Citation:	Koutoulas v Strangas & Son Building Contractors Pty Ltd [2013] NSWSC 1260
Hearing dates:	2 September 2013
Decision date:	02 September 2013
Jurisdiction:	Equity Division - Commercial List
Before:	Stevenson J
Decision:	Summons dismissed
Catchwords:	PRACTICE AND PROCEDURE - civil - whether jurisdiction to enforce orders made by Consumer, Trader and Tenancy Tribunal - no jurisdiction
Legislation Cited:	Consumer, Trader and Tenancy Tribunal Act 2001 Supreme Court Act 1970
Category:	Principal judgment
Parties:	George Koutoulas (first plaintiff) Katrina Koutoulas (second plaintiff) Strangas & Son Building Contractors Pty Limited (defendant)
Representation:	Counsel: R M Jefferis (plaintiffs) D P O'Connor (defendant) Solicitors: Kenneth Harrison (plaintiffs) Brischetto & Ford Solicitors (defendant)
File Number(s):	SC 2013/244220
Publication restriction:	Nil

EX TEMPORE Judgment (revised)

1. These proceedings were commenced on 12 August 2013. They were first returnable in the Commercial List last Friday, 30 August 2013. On that occasion, Hammerschlag J set the matter down for hearing before me today.

1. The plaintiffs are the owners of land in Burwood. On 19 June 2008, the plaintiffs entered into a building contract with the defendant pursuant to which the defendant agreed to do work on the Burwood property. Disputes arose between the parties which led to the commencement of proceedings, by one or other of them, in the District Court of New South Wales. Those proceedings were transferred to the Consumer, Trader and Tenancy Tribunal of New South Wales ("the CTTT").

1. There were two proceedings before the CTTT. The first dealt with monies allegedly due by the plaintiffs to the defendant. The other proceedings related to defects that the plaintiffs contended existed in the building works. The hearing of the proceedings commenced in the CTTT on 6 July 2012. On 10 July 2013, the CTTT handed down its decisions and made the following orders: -

"1) In matter HB 10/50259:

a) Strangas & Sons Building Contractors Pty Ltd are to pay George and Katrina Koutoulas the sum of $17,828.91 within 30 days of the date of these orders.

b) Strangas & Sons Building Contractors Pty Ltd are to provide the following certification:

i) Waterproofing;

ii) Terminate protection and Termite Protection Sticker for affixing in electrical metre box;

iii) Plumbing;

iv) Electrical installation;

v) Gas installation; and

vi) Builder's certification.

2) In matter HB 10/50251 George and Katrina Koutoulas are to pay Strangas & Sons Building Contractors Pty Ltd the sum of $67,944.09 within 30 days of the date of these orders."

1. In these proceedings, the plaintiffs seek the following orders: -

(1)   An order that within 7 days, the defendant deliver to the plaintiffs the following certificates in verified form regarding building work done by the defendant at the Burwood property: -

(i)   waterproofing;

(ii)   termite protection and Termite Protection Sticker for affixing in electrical meter box;

(iii)   plumbing;

(iv)   electrical installation;

(v)   gas installation; and

(vi)   builder's certification.

(2)   An order that any monies paid into Court by the plaintiffs, be released to the defendant subject to the following: -

(i)   receipt of the certificates referred to in par 1(i) to (vi) inclusive by the plaintiffs; and

(ii)   production of evidence by the defendant that all sub-contractors engaged by the defendant, pursuant to the Building Contract between the parties dated 19 June 2008 for building works at the Burwood property, have been paid.

(3)   Costs.

1. In effect, the plaintiffs seek an order of this Court enforcing the orders made by the CTTT on 10 July 2013. As Mr Jefferis of counsel, who appeared for the plaintiffs, put it, the plaintiffs seek an order in the nature of "specific performance" of the CTTT orders.

1. At the outset of the hearing I inquired of Mr Jefferis as to what he submitted was the source of my jurisdiction to make any such order. In the first instance, Mr Jefferis referred to s 69 of the Supreme Court Act 1970. In my opinion, that section, assuming it applied, does not give me power to make orders of the kind sought in these proceedings. That section, if it applied, would give this Court the power to make orders in the nature of a writ of prohibition, mandamus, certiorari or of other description. No such order is sought.

1. In any event, s 65 of the Consumer, Trader and Tenancy Tribunal Act 2001 ("the CTTT Act") provides that, with irrelevant exceptions, s 69 does not apply in relation to matters determined by the CTTT.

1. The CTTT Act makes provision for the enforcement of its orders. Section 43 of the Act provides: -

"(1) If the Tribunal makes an order in relation to any proceedings, the Tribunal may, when the order is made or later, give leave to the person in whose favour the order is made to renew the proceedings if the order is not complied with within the period specified by the Tribunal.

(2) If an order has not been complied with within the period specified by the Tribunal, the person in whose favour the order was made may renew the proceedings to which the order relates by lodging a notice with the Tribunal, within 12 months after the end of the period, stating that the order has not been complied with.

(3) The provisions of this Act apply to a notice lodged in accordance with subsection (2) as if the notice were an application made in accordance with section 24.

(4) When proceedings have been renewed in accordance with this section, the Tribunal:

(a) may make any other appropriate order under this Act as it could have made when the matter was originally determined, or

(b) may refuse to make such an order.

(5) This section does not apply if the operation of an order has been suspended.

(6) A notice under this section must be in the form prescribed by the regulations."

1. It is open to the plaintiffs to restore the matter before the CTTT. In that event, the CTTT has the powers set forth in s 43 and s 52 of the CTTT Act.

1. One of the orders made by the CTTT was that the defendant pay the plaintiffs $17,828.91. Section 51 of the CTTT Act provides: -

"(1) For the purposes of the recovery of any amount ordered to be paid by the Tribunal (including costs, but not including a civil or other penalty), the amount is to be certified by the Registrar.

(2) A certificate given under this section must identify the person liable to pay the certified amount.

(3) A certificate of the Registrar that:

(a) is given under this section, and

(b) is filed in the registry of a court having jurisdiction to give judgment for a debt of the same amount as that amount stated in the certificate,

operates as such a judgment."

1. Thus, the order made by the CTTT for the payment of monies could be made the subject of a certificate of the registrar of the CTTT as envisaged by s 51. Such certificate could be filed at a court of appropriate jurisdiction and enforced as a judgment.

1. Further, s 52 of the CTTT Act provides as follows: -

"(1) A person must not wilfully contravene or fail to comply with an order of the Tribunal made under this or any other Act.

...

(2) Subsection (1) does not apply to or in respect of:

(a) an order for the payment of any money, or

(b) an order under section 52 of the Residential Tenancies Act 1987, or

(c) such classes of orders, or such classes of proceedings, as may be prescribed by the regulations."

1. Insofar as the orders of 10 July 2013 are orders otherwise than for the payment of money, the plaintiffs could seek to have the defendant dealt with under that section if they could demonstrate wilful contravention or non-compliance with the 10 July 2013 order.

1. Mr Jefferis submitted that that combination of remedies may not be adequate to enable the plaintiffs to seek effective compliance with the orders made by the CTTT, especially those which do not call for the payment of money. Whether or not that is so, I fail to see how that casts any light on the question of whether I have jurisdiction to deal with the matter. Mr Jefferis was not able to draw my attention to any authority which establishes that I do have jurisdiction.

1. The conclusion to which I have come is that this Court has no jurisdiction to make the orders sought. My opinion is that the summons is misconceived and must be dismissed.

1. Mr O'Connor, who appears for the defendant, seeks an order that the plaintiffs pay the defendants costs on an indemnity basis. In support of that order, he reads an affidavit sworn by Mr Strangas on 26 August 2013. In that affidavit, Mr Strangas gives evidence that this matter was listed before the CTTT on 16 August 2013 and that on that occasion there was no representation for the plaintiffs.

1. On 16 August 2013, the CTTT made orders for interest and costs. Further, Member Meadows said something to the effect: -

"It was my intention with the Orders in this matter for there to be a simultaneous settlement where the builder would hand over the Certificates referred to in 1(b) and for the homeowners to simultaneously handover a cheque for the difference."

1. On that day, the defendant's solicitors wrote to the plaintiffs' solicitor, referring to the summons and affidavit before me, saying, amongst other things: -

"As presently framed it appears to us that your clients' proceedings are vexatious and embarrassing, because being without legal foundation they nevertheless seek to avoid the payment to our client of the outstanding amount in the judgment which the Tribunal Orders contemplate as a basis for our client to provide your clients the Certificates referred to in Tribunal Order 1(b).

As per the evidence tendered at the CTTT hearing, our client remains ready, willing and able to provide the Certificates upon your clients' payment of the outstanding amounts pursuant to the judgment of the Tribunal."

1. The plaintiffs' solicitors made no reply to that letter.

1. Further, last Friday 30 August 2013 the defendant's solicitor wrote a further letter to the plaintiffs' solicitor (expressed to be without prejudice except as to costs) offering to settle the matter on the following basis: -

"1. That on 2 September 2013 your clients hand to our client a bank cheque drawn in favour of Strangas & Son Building Contractors Pty Ltd in the sum of $65,384.81 ($65,010.89 + $373.92 interest from 10 August 2013 to 2 September 2013) and simultaneously the defendant will hand to your representative the six certificates referred to in the CTTT Judgment and Orders.

2. The plaintiffs pay the Defendant's costs as agreed or assessed on a party and party basis.

3. The Summons be otherwise dismissed."

1. The defendant's solicitors also asserted that these proceedings were an abuse of process and embarrassment, and would be dismissed outright.

1. In my opinion, the plaintiffs have behaved in a most unreasonable manner in relation to this matter. First, had they bothered to have a legal representative present at the CTTT on 16 August 2013, or had one or other of them been present there themselves, they would have understood, if they did not know already, that the CTTT's intention (manifest in any event from the form of its orders) was that there should be, following upon the CTTT's orders of 10 July 2013, a settlement whereby the certificates ordered to be delivered by the CTTT were exchanged for money. In any event, that is what the defendant, through its solicitor, offered in the letter of 16 August 2013. Further, the defendant's solicitor's letter of 30 August 2013 offered a compromise which the plaintiffs ignored; as it turns out at their peril.

1. I am satisfied that special circumstances exist which warrant me making a special order for costs.

1. The orders I make are that: -

(1)   The summons is dismissed.

(2)   The plaintiffs are to pay the defendant's costs of these proceedings on an indemnity basis.

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Decision last updated: 04 September 2013