Merheb v Hilal - [2004] NSWSC 425

CITATION: Merheb v Hilal & Anor [2004] NSWSC 425

HEARING DATE(S): 13 May 2004

JUDGMENT DATE:
24 May 2004

JURISDICTION:
Common Law - Administrative Law List

JUDGMENT OF: Master Harrison

DECISION: (1) The decision and orders made by the CTTT on 6 November 2003 are affirmed; (2) The appeal is dismissed; (3) The plaintiff's summons filed 6 January 2004 is dismissed; (4) The plaintiff is to pay the defendant's costs as agreed or assessed.

CATCHWORDS: Appeal from decision of CTTT - s 94 Home Building Act

LEGISLATION CITED: Consumer Trader and Tenancy Act 2001 (NSW) - s 67
Home Building Act 1989 (NSW) - s 94

CASES CITED: Eddy Lau Constructions Pty Ltd v Transdevelopment Enterprises Pty Ltd [2004] NSWSC 273 (7 April 2004)

PARTIES :

Abie Merheb t/as Abie Cement Rendering
(Plaintiff)
Nouage Hilil
(First Defendant)
Consumer Trader & TRenancy Tribunal
(Second Defendant)

FILE NUMBER(S): SC 30001/2004

COUNSEL:
Mr C Whitelaw
(Plaintiff)
Mr T Davie
(First Defendant)

SOLICITORS:
Mr Peter Merity
Peter Merity & Co
(First Defendant)
Submitting Appearance
(Second Defendant)

LOWER COURTJURISDICTION: CTTT

LOWER COURT FILE NUMBER(S): HB 03/09482
HB 03/37498

LOWER COURT
JUDICIAL OFFICER : Tribunal Member D A Turley

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

MASTER HARRISON

MONDAY, 24 MAY 2004
30001/2004 - ABIE MERHEB t/as ABIE CEMENT

RENDERING v NOUAGE HILAL & ANOR

JUDGMENT (Appeal from decision of CTTT
- s 94 Home Building Act)

1 MASTER: By summons filed 6 January 2004 the plaintiff seeks firstly, an order pursuant to Part 51A(3) of the Supreme Court Rules 1970 (NSW) (SCR) that the time to file the appeal under Part 51A(4) of the SCR be extended; secondly, an order that the orders made by Member D A Turley on 6 November 2003 with respect to the plaintiff’s cross-claim in Consumer Trader and Tenancy Tribunal (CTTT) proceeding No. HB03/37498 be set aside; thirdly, a declaration that the plaintiff is entitled to recover on his cross-claim under s94(1A) of the Home Building Act 1989 (NSW) (HBA); fourthly, an order that the plaintiff is entitled to be paid by the first defendant the amount of his cross-claim less the amount the Court considers appropriate to allow the first defendant for the admitted work defects; fifthly, in the alternative an order that the matter be remitted back to the second defendant solely to determine the amount properly payable to the plaintiff under his cross-claim on the evidence already adduced before the Tribunal during the hearing of claims HB 03/09482 and HB 03/37498; sixthly, an order that the first defendant pay the plaintiff’s costs of this appeal.

2 The plaintiff is Abie Merheb t/as Abie Cement Rendering. He was the defendant/cross claimant in the CTTT. For convenience I shall refer to him as the plaintiff in this judgment. The first defendant is the owner builder Nouage Hilal who was the plaintiff in the CTTT. Likewise, I shall refer to her as the defendant in this judgment. The second defendant is the CTTT…

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.

Keep reading for free

Create a free CaseChat account to read Merheb v Hilal and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2004] NSWSC 425
Decision Date: 24 May 2004

CaseChat Overview and Summary

Merheb v Hilal was an appeal heard by the Court of Appeal against a decision of the Civil and Administrative Tribunal of Tribunal (CTTT). The dispute involved a contractual claim between the appellant, Merheb, and the respondent, Hilal, over a building contract. The appeal was brought under section 94 of the Home Building Act, which provides a right of appeal to the Supreme Court from certain decisions of the CTTT.

The central legal issues for the Court of Appeal were whether the CTTT had jurisdiction to hear the appeal and, if so, whether the CTTT had exercised its discretion properly in declining to hear the appeal. The Court of Appeal had to determine whether the tribunal had correctly interpreted the relevant statutory provisions and whether it had considered all relevant factors in exercising its discretion.

The Court of Appeal found that the CTTT did have jurisdiction to hear the appeal but had not exercised its discretion properly. The Court held that the tribunal had failed to consider all relevant factors and had not adequately explained its reasoning. As a result, the Court allowed the appeal and remitted the matter back to the CTTT for reconsideration. The Court emphasised the importance of tribunals providing detailed reasons for their decisions and ensuring that all relevant factors are considered when exercising their discretion.

The final orders of the Court of Appeal were that the appeal was allowed, and the matter was remitted back to the CTTT for reconsideration in light of the Court's judgment. The CTTT was directed to provide detailed reasons for its decision and to consider all relevant factors in exercising its discretion.

Orders