Reeves v Bennett - [2007] NSWSC 1265

CITATION: Reeves v Bennett [2007] NSWSC 1265

HEARING DATE(S): 7 November 2007

JUDGMENT DATE :
14 November 2007

JURISDICTION: Common Law Division

JUDGMENT OF: Associate Justice Malpass

DECISION: The summons is dismissed. The plaintiffs are to pay the costs of the summons.

CATCHWORDS: Appeal from Consumer Trader & Tenancy Tribunal - ambit of appeal - importation of contractual term - breach and assessment of damages.

LEGISLATION CITED: Home Building Act 1989 (NSW)
Consumer, Trader & Tenancy Tribunal Act 2001 (NSW)

CASES CITED: Chapman v Taylor & Ors; Vero Insurance Ltd v Taylor & Ors [2004] NSWCA 456

PARTIES: William F Reeves (1st Pl)
S A Reeves (2nd Pl)
Judith Ann Bennett (1st Def)
Daniel James Bennett (2nd Def)
Consumer Trader & Tenancy Tribunal (3rd Def)

FILE NUMBER(S): SC 2007/30067

COUNSEL: R N O'Neill (Pls)
P Meehan (sol) (Defs)

SOLICITORS: McDonnell Schroder (Pls)
Meehans Solicitor Corp (1st & 2nd Def)
I V Knight, Crown Sol (3rd Def)

LOWER COURT JURISDICTION: Consumer Trader and Tenancy Tribunal of NSW

LOWER COURT FILE NUMBER(S): HB 05/03569

LOWER COURT JUDICIAL OFFICER : Mr J Bordon

LOWER COURT DATE OF DECISION: 8 May 2007

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE MALPASS

14 NOVEMBER 2007

30067/07 William Reeves & Anor v Judith Ann Bennett & Ors

JUDGMENT

1 HIS HONOUR: The plaintiffs carry on business in partnership. Mr William Reeves (“Mr Reeves”) is a licensed builder and a family friend of the first and second defendants (the defendants). The defendants are mother and son.

2 The defendants had contemplated the purchase of a property at Picton (“the property”). There was also a contemplation that, if the property was purchased, a part of it (which has been described as “an outdoor area”) would be converted into a sitting room for the son (which has also been described as Daniel’s TV room). It was further contemplated that other work would be done on the property.

3 Prior to the purchase, Mr Reeves made an inspection of the property. A building report was obtained (from Mr Benad). A copy of it was given to Mr Reeves. The building report recommended that the structure on the property be checked with Council to ensure that there had been Council approval.

4 The defendants entered into a contract to purchase the property. MLG Conveyancing were engaged to handle the transaction on their behalf. An inquiry was made by them of the vendor concerning the matter of Council approval. Inquiries were then made of the Council. Council advised that there had been, inter alia, approval for an awning. The purchase was completed on 21 August 2003.

5 At the time of the completion of the purchase, the outdoor area comprised more than just an awning. Other work had been done subsequent to the approval for the awning.

6 An agreement was reached between the plaintiffs and the defendants for the doing of work on the property (including work to be done in respect…

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.

Continue reading Reeves v Bennett

Details

AGLC: Reeves v Bennett [2007] NSWSC 1265
Case: [2007] NSWSC 1265
Decision Date: 14 November 2007

CaseChat Overview and Summary

The appeal by Reeves against Bennett involved a dispute between a consumer and a trader, which originated in the Consumer Trader & Tenancy Tribunal. The primary issue at hand was whether the tribunal had correctly interpreted and applied a contractual term that was allegedly breached, and if so, whether the damages awarded were appropriate. The case was heard in the court of appeal, which had to determine if the lower tribunal had correctly exercised its jurisdiction in relation to the importation of a contractual term, and whether the breach and assessment of damages were correctly handled.

The central legal questions the court had to resolve were whether the tribunal had the authority to introduce a contractual term that was not explicitly stated in the contract between the parties, and if the term, once recognised, had indeed been breached. Furthermore, the court had to assess whether the damages awarded by the tribunal were commensurate with the loss suffered by Reeves due to the breach. These issues required careful consideration of the terms of the contract, the principles of contractual interpretation, and the rules governing the assessment of damages.

In examining the tribunal's decision, the court found that the tribunal had the jurisdiction to interpret the contract and imply terms where necessary to achieve a just outcome. However, the court held that the term in question was not appropriately imported as it was not necessary to give business efficacy to the contract. Consequently, the court found that no breach occurred as the term on which the claim was based did not exist in the contract. Because no breach was found, the issue of damages did not arise. The appeal was dismissed, and the original decision of the tribunal was set aside, with no orders for costs.

Orders