Nicholas Televantos T/A Mastercraft Home Additions and Improvements v FCR Formwork Pty Ltd

[2011] HCASL 183

NICHOLAS TELEVANTOS T/A MASTERCRAFT HOME ADDITIONS AND IMPROVEMENTS
v
FCR FORMWORK PTY LTD & ANOR
[2011] HCASL 183
S125/2011

1. The subject matter of this proceeding is a relatively modest building claim.  The first respondent, FCR Formwork Pty Ltd ("FCR"), brought proceedings against the applicant for work carried out by the second respondent, Mr Viegas, a director of FCR.  The claim was for $8,899.69.  The applicant cross-claimed for $8,000, asserting that the work had been defectively performed.

2. The magistrate found in favour of FCR, awarding the sum claimed with interest and costs.  The cross-claim was dismissed. 

3. The applicant appealed to the Supreme Court of New South Wales (Latham J). On the hearing of the appeal the applicant sought to adduce evidence that FCR was not licensed to carry out residential building work contrary to s 4(1) of the Home Building Act 1989 (NSW) ("the Act"). Section 10(1)(a) of the Act renders a contract entered into by a person to do residential building work in contravention of s 4(1) unenforceable by that person. Latham J declined to admit the evidence. Her Honour was not satisfied that the evidence could not have been obtained with reasonable diligence for use at the trial. She was also not satisfied that the result would have been different had the evidence been adduced at the trial. She considered that even if the contract was unenforceable an alternative claim on a quantum meruit would have been available.

4. The Court of Appeal of the Supreme Court of New South Wales (Tobias and Young JJA) dismissed the applicant's summons for leave to appeal and said that there was ample authority to support Latham J's conclusion respecting the availability of a quantum meruit claim. 

5. The applicant applies for special leave to appeal.  The ground in the draft notice of appeal is directed to Latham J's refusal of leave to adduce the evidence that FCR was unlicensed at material times.  It is more fully developed in the application for special leave.  However, in none of the material filed in support of the application does the applicant address Latham J's finding that the evidence was not fresh.

6. There are three further grounds set out in the application for special leave.  They are obscure.  Each complains of the failure to make findings respecting an invoice from ASAP Bricklayers dated 20 January 2006.  Latham J makes no reference to the ASAP Bricklayers invoice in her reasons.  The appeal to her was confined to error of law[1].  The Court of Appeal rejected the applicant's submission that even on the basis of a quantum meruit the amount claimed by FCR was not reasonable.  It concluded that no error was demonstrated in the approach taken by Latham J to the determination of the motion to adduce evidence that FCR was not licensed at the time.  There is no reason to doubt the correctness of that conclusion.  The submissions sought to be argued in this Court were made before the Court of Appeal. 

   [1]Local Court Act 2007 (NSW), s 39(1).

7. If special leave to appeal were granted the appeal would have no prospects of success. 

8. The application is dismissed. 

9. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application. 

10. The application was reinstated by order of Gummow J on 16 August 2011.  His Honour directed that the costs of the reinstatement application be reserved.  The applicant is to pay the respondents' costs of the reinstatement application.

J.D. Heydon
26 October 2011 V.M. Bell