Pender v Robwenphi Pty Limited & Anor - [2008] NSWSC 1144

CITATION: PENDER v ROBWENPHI PTY LIMITED & ANOR [2008] NSWSC 1144

HEARING DATE(S): Thursday 12 June 2008

JUDGMENT DATE :
30 October 2008

JURISDICTION: Administrative Law

JUDGMENT OF: Hall J at 1

DECISION: Appeal dismissed

CATCHWORDS: ADMINISTRATIVE LAW – CTTT appeal – appeal under s.67 against Tribunal decision on a question with respect to a matter of law – whether discretion under s.94(1)(A) of the Home Building Act 1989 properly exercised – whether relevant matters taken into account – whether irrelevant matters taken into account – in determining what was “just and equitable” - Tribunal had exercised discretion to award monies to builder on a quantum meruit basis – alleged error in exercise of discretion – whether failure to exercise discretion according to law and whether regard to irrelevant considerations – alleged error in permitting recovery of monies on a quantum meruit basis – whether absence of evidence to support quantum meruit claim – adequacy of Tribunal’s reasons for decision, findings implicit in conclusions in decision – no error of law – assessment of “benefit” and “acceptance of benefit” matters of fact for Tribunal’s evaluation - Tribunal had exercised its discretion to award costs – whether cl.20(3) of Consumer, Trader and Tenancy Regulation requiring “exceptional circumstances” before a costs order may be made – Tribunal’s reasons deficient but Court affirmed Tribunal’s decision under s.67(3) of the Consumer, Trader and Tenancy Act as an appropriate order.

LEGISLATION CITED: Consumer Trader and Tenancy Tribunal Act 2001
Consumer Trader and Tenancy Tribunal Regulation 2002
Courts and Crimes Legislation Amendment Act 2008
Home Building Act 1989

CASES CITED: ABB Engineering Construction Pty Limited v Abigroup Contractors Pty Limited [2003] NSWSC 665
A J Bignell Pty Limited v S G Edenden [2004] NSWSC 27
Beale v Government Insurance Office of NSW (1997) NSWLR 430
BP Exploration Co (Libya) Limited v Hunt (No 2) [1979] 1 WLR 783
Canham v Australian Guarantee Corporation Limited (1990) 20 ALD 361
Eddy Lau Constructions Pty Limited v Transdevelopment Enterprise Pty Limited [2004] NSWSC 273
Foran v Wight (1989) 168 CLR 385
Janos Hoey v Consumer, Trader and Tenancy Tribunal [2002] NSWSC 1023
Kalokerinos v HIA Insurance Services Pty Limited [2004] NSWCA 312
Merheb v Hilal & Anor [2004] NSWSC 425
Mifsud v Campbell (1991) 21 NSWLR 725
Murphy v Director of Public Prosecutions [2006] NSWSC 965
Pavey & Matthews Pty Limited v Paul (1987) 162 CLR 221
Sullivan v Waltons Credit Ltd (1990) ASC 56-023
TS v George (Studdert J, unreported 14 April 1998)

TEXTS CITED: Restitution Law in Australia, Keith Mason and J W Carter (1995) Butterworths

PARTIES: David Burnett PENDER v
ROBWENPHI PTY LIMITED (formerly R W PALMER ELECTRICAL SERVICES PTY LIMITED) & ANOR

FILE NUMBER(S): SC 30092/07; 30020/08

COUNSEL: P: E Kennedy
D: I Judd/L Judd

SOLICITORS: P: David Farrell & Co
D: George Mallos Solicitors

LOWER COURT JURISDICTION: CTTT

LOWER COURT FILE NUMBER(S): HB 05/35311
HB 05/49318

LOWER COURT JUDICIAL OFFICER : S F Smith

LOWER COURT DATE OF DECISION: 7 August 2007; 6 February…

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.

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Details

Case: [2008] NSWSC 1144
Decision Date: 30 October 2008

CaseChat Overview and Summary

The case of Pender v Robwenphi Pty Limited & Anor involves an appeal against a decision made by the Civil and Administrative Tribunal (CAT) in New South Wales. The appellant, Pender, is contesting the Tribunal's ruling that awarded certain monies to the respondent, Robwenphi Pty Limited, on a quantum meruit basis. The appeal concerns whether the Tribunal correctly exercised its discretion under the Home Building Act 1989 and whether it took into account relevant and irrelevant matters in determining what was "just and equitable."

The primary legal issues before the court were whether the Tribunal properly exercised its discretion in awarding the monies, whether it considered relevant and irrelevant matters, and whether there was an absence of evidence to support the quantum meruit claim. Additionally, the court considered whether the Tribunal's reasons for its decision were adequate and whether the award of costs was appropriate under the Consumer, Trader and Tenancy Regulation. The court needed to determine if the Tribunal's decision was in accordance with the law and if the reasons provided were sufficient to justify the outcome.

The court found that there was no error of law in the Tribunal's decision. It held that the assessment of the "benefit" and the "acceptance of benefit" were matters of fact for the Tribunal's evaluation. The court also determined that while the Tribunal's reasons were deficient, the decision was affirmed under section 67(3) of the Consumer, Trader and Tenancy Act as an appropriate order. Despite the inadequacy in the reasons provided, the court upheld the Tribunal's exercise of discretion and the award of costs, finding that the Tribunal had indeed exercised its discretion in accordance with the law.

Orders