Melmint Pty Ltd v Cummings

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   MELMINT PTY LTD -v- CUMMINGS [2008] WASC 225

CORAM:   HASLUCK J

HEARD:   16 SEPTEMBER 2008

DELIVERED          :   17 OCTOBER 2008

FILE NO/S:   GDA 3 of 2008

BETWEEN:   MELMINT PTY LTD (ACN 051 360 939)

Appellant

AND

RODNEY STUART CUMMINGS
ANNA CUMMINGS
Respondents

ON APPEAL FROM:

Jurisdiction              :  STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA

Coram  :MR P McNAB (MEMBER)

Citation  :MELMINT PTY LTD and CUMMINGS & ANOR [2008] WASAT 76

File No  :CC 1369 of 2007

Catchwords:

Appeal - Application for leave to appeal from State Administrative Tribunal - Procedural and jurisdictional issues - Effect of provisional decision allowing leave to appeal - Builder's liability to rectify allegedly discharged by accord and satisfaction - Findings against builder - Provisional order allowing builder to appeal set aside and leave to appeal refused

Legislation:

Rules of the Supreme Court 1971 O 65 r 7
State Administrative Tribunal Act (WA), s 3, s 105

Result:

Leave to appeal refused

Category:    B

Representation:

Counsel:

Appellant:     Mr T H Brickhill

Respondents                 :     Mr R E Lindsay

Solicitors:

Appellant:     Brickhills

Respondents                 :     iLaw

Case(s) referred to in judgment(s):

Adbooth Pty Ltd v City of Perth [2007] WASC 218

Lane v Esdaile [1891] AC 210

Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue of the State of Victoria (2001) 207 CLR 72

HASLUCK J: 

Introduction

1. The appellant, Melmint Pty Ltd, seeks to set aside certain orders made by a member of the State Administrative Appeal Tribunal.  The dispute underlying the proposed appeal concerns building work that was undertaken by Melmint over eight years ago.  The manager of the building company at that time was Mr Charles Allia and the company was therefore trading as Charles Allia Homes.

2. Section 105(1) of the State Administrative Tribunal Act 2004 (WA) provides that a party to a proceeding may appeal from a decision of the Tribunal in the proceeding, but only if the court to which the appeal lies gives leave to appeal. By s 105(3) of the Act the term 'decision' includes any order, direction or determination of the Tribunal.

3. By s 105(2) of the Act an appeal can only be brought on a question of law. The appeal lies to the Court of Appeal if the decision was made by a judicial member or by the Tribunal constituted by members who include a judicial member. In any other case, the appeal lies to the Supreme Court exercising its other jurisdiction.

4. The matters in issue before me include certain procedural and jurisdictional issues bearing upon the validity of the proposed appeal.  I will deal with these in due course.  However, it will be useful to begin by looking at the background to the dispute between the parties.  This dispute came before the Building Dispute Tribunal initially.  The ruling made by that Tribunal (the 'BDT') was taken to the State Administrative Tribunal (the 'SAT') and is therefore under notice in the proceedings before me.

Background