Robert Hinkley v Ray Redgrave, RCR Management Pty Ltd
[2014] NSWCATCD 133
•13 February 2014
NSW Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Robert Hinkley v Ray Redgrave, RCR Management Pty Ltd [2014] NSWCATCD 133 Decision date: 13 February 2014 Before: N Correy, Senior Member Decision: That the Registrar list the matter for directions not before 19 February 2014.
Legislation Cited: Home Building Act 1989 (the Act)
Civil Liability Act 2002 (CLA)Cases Cited: Italiano v Carbone and Others [2005]
NSWCA 177
Nielsen v Building Masters Aust [2012] NSWCTTT 185
Bailey v Ciamarella [2013] NSWCTTT 39
Hoffman v Wilson Betamix Concrete and Rickaby [2011] NSWCTTT 427Texts Cited: Building Disputes and the Home Building Act 1989 (NSW) . Text Author - Phillip Bambagiotti Category: Principal judgment Parties: Robert Hinkley (Applicant)
Ray Redgrave (Respondent)
RCR Management Pty Ltd (Respondent)File Number(s): HB 11/38740
reasons for decision
PRELIMINARY QUESTIONS FOR DETERMINATION
Four preliminary questions have been drafted by agreement between the parties and submitted to the Tribunal for its determination. The questions are as follows:
(i) Whether Raymond Donald Redgrave (the first respondent) ("Redgrave") should be a party to these proceedings.
(ii) Answer: It is not appropriate for this question to be answered before trial.
(iii) Whether the Tribunal has jurisdiction to hear the applicant's claim against RCR Management Pty Ltd (the second respondent) ("RCRM").
(iv) Answer: Yes
(v) Whether a contract existed and if so, who were the parties to that contract and what were its terms.
(vi) Answer: It is not appropriate for this question to be answered before trial.
(vii) Whether the Tribunal has jurisdiction to deal with pleadings derived from the Civil Liability Act 2002, specifically, pleadings in relation to apportionment.
(viii) Answer: Yes
REASONS FOR DECISION
SUMMARY OF FACTS AND CONTENTIONS
A brief summary of the background facts and contentions relevant to the questions posed is outlined below.
The applicant is the owner of premises at XXXX Kiama Heights (the premises).
During 2008 the applicant came into contact with Greg Bradley (Bradley) an owner of premises at 35 Kalang Street Kiama. Bradley was in the process of conducting renovations to his premises as an owner builder with the assistance Redgrave.
A number of meetings were held between the applicant, Bradley and Redgrave during the period between around mid to late 2008 regarding the renovation works that the applicant wanted conducted at the premises. Preliminary plans were first provided to Bradley/Redgrave around May 2008 and discussions took place between them as to what works were required to be undertaken at the premises.
A Scope of Works (SOW) document was prepared by Bradley /Redgrave in late May early June 2008. At some point later, Bradley/Redgrave prepared a Price Summary (PS) document in respect of the works. Neither the SOW nor the PS were signed by any of the parties. Similarly the author and date of each of these documents are not disclosed anywhere on their face. Similarly the specific date or dates that the SOW/PS documents were submitted to the applicant is not disclosed.
Plans for the proposed works at the premises were prepared by Rod Nielsen of SF Plan and Design Group (Nielsen) presumably sometime around mid-2008.
On 24 August 2008 Nielsen wrote to Bradley requesting a "written estimate building quote for (the applicant's) proposal so as to prepare final drawings and enter into a fixed price contract with you, if you are successful in gaining the project."
Final plans prepared by Nielsen are submitted to Bradley/Redgrave around August/September 2008.
Nielsen/the applicant, make the development application to Kiama Municipal Council (KMC) around August/September 2008.
On 21 October 2008 KMC issues a development consent in respect of the works to be undertaken at the premises.
On the 10 November 2008 an Owner Builder Construction and Public Liability Policy No. AOBC000206 is issued to the applicant by Buildsafe Insurance Brokers.
On 20 November 2008, RCR Management Pty Ltd (RCRM) was issued builders licence no. 21042C. The licence authorised the holder to do the work under the "work description" of "builder". It also imposed the licence condition as follows: "Only for contracts not requiring home warranty insurance". RR was also named as an individual under the licence.
Prior to the respondents undertaking any work at the premises the applicant had done some demolition/preparation with respect to the premises himself.
Between a date in mid to late November 2008 and 13 February 2009 both Redgrave and RCRM were involved in the building works at the premises.
Tax invoices were submitted in the name of The Scoops Trading Trust, a business name of RCRM, to the applicant. Two of the invoices are dated 19 December 2008 and two others are dated 25 January 2009 and 8 February 2009. The foregoing invoices were ostensibly in respect of work performed by one or other or both respondents at the premises during the period that they were involved in the works there.
The applicant was throughout the same period of the respondents' involvement at the premises, also spending a lot of time there and had significant involvement in the sourcing and engagement of contractors and taking delivery of materials.
On 11 February 2009 the respondents were instructed by Georgina Hinkley, the applicant's wife, to cease work at the premises and to leave it. The respondents had no further involvement in the works at the premises other than to return and collect tools and belongings on 12/13 February 2009. No notice of defects was given to the respondents nor was any opportunity afforded to them to rectify any defects that may have been alleged to exist in the works up to that point in time.
The applicant contends that the respondents were engaged under a contract to carry out the works at the premises in accordance with the KMC approved plans and the SOW for the fixed price as set out in the PS document.
The respondents on the other hand contend firstly that they did not enter into a contract with the applicant to carry out the job as a whole. They contend that if they did enter into any contractual arrangement with the applicant, then they entered into a series of smaller contracts, each with respect to specific components of the job. Further they contend that the applicant was at all times an owner builder responsible for the job as a whole and that they were employed as subcontractors to him in respect of separate and specific aspects of the whole job.
The applicant notified the Office of Fair Trading (OFT) on 12 July 2011 regarding the dispute involving Redgrave.
The application against Redgrave was filed in this Tribunal on 3 August 2011.
The amended points of claim naming RCRM was filed by the applicant on 11 May 2012.
The written order of the Tribunal that RCRM be joined as a respondent was made at the request of the applicant over objection from the respondents on 19 June 2012.
FACTUAL ANALYSIS AND LEGAL REASONING
Question (i) Whether Raymond Donald Redgrave should be a party to these proceedings
24.1 The determination of this question I find cannot or should not be determined as a preliminary question because it is dependent upon the answer to Question 3 below which I find similarly can only be properly determined by assessing which of two conflicting versions of evidence is to be accepted.
24.2 The applicant's contention as articulated in its Further Amended Points Of Claim (FAPOC) is that a reference to "the respondent" for the purpose of the claim is a reference to both Redgrave and RCRM.
24.3 Although not articulated with precision it is implied from the FAPOC that there was in the alternative a contract with one or other or both of Redgrave or RCRM, to carry out the alleged works as set out in the SOW document.
24.4 In paragraph 2A(i) of the FAPOC the applicant alleges that RCRM "was engaged to carry out the works". In paragraph 2A(ii) of the FAPOC the applicant alleges that Redgrave agreed to carry out the works "pursuant to the SOW...which failed to identify any contracting party".
24.5 It is therefore the applicant's implied contention that one or other or both of those parties in the alternative was contracted to do the work the subject of the SOW , which works were alleged not to have been completed because the respondents were requested by the applicant to leave the premises.
24.6 I find that because the answer to Question 3 requires the Tribunal to choose between conflicting versions of evidence, it is not appropriate for such choice to be made as to which evidence is preferred for that question to be answered without hearing from each of the relevant witnesses orally and for the opposing parties and the Tribunal to have opportunity to cross examine them.
Question (ii) Whether the Tribunal has jurisdiction to hear the applicant's claim against RCR Management Pty Ltd)
25.1 The applicant's claim against RCRM as particularised in the FAPOC is essentially twofold, as follows:
25.2 It alleges firstly "a failure that the works were not completed and claims damages for mitigation of loss in engaging third parties to complete it".
25.3 It also alleges breaches of the warranties owed under Section 18B of the Act and seeks damages in respect of the rectifying of alleged defective works consequent upon those breaches.
RCRM says that the applicant's claim is beyond jurisdiction because it was not brought within three years of the date that the respondents were excluded from the premises namely 13 February 2009. Reliance is placed upon Section 48K(3) of the Act which is as follows:
The Tribunal does not have jurisdiction in respect of a building claim relating to building goods or services that have been supplied to or for the claimant if the date on which the claim was lodged is more than three years after the date on which the supply was made ....
RCRM firstly says essentially that the joinder was beyond the power of the Tribunal because there had been no compliance with the requirements of Part 3A of the Act in bringing the claim.
It is submitted by the applicant that the express power afforded by Section 48Q of the Act would be a nullity if the RCRM submission on this point was accepted. Section 48Q is in the following terms:
If at any time before or during proceedings before it the Tribunal is of the opinion that a person should be joined as a party to the proceedings, the Tribunal may, by notice in writing given to the person or by oral direction during proceedings , join the person as a party to the proceedings.
Although not referred to in the submissions of either party in relation the application of Section 48Q, guidance on its application can be found in the Spigelman CJ decision in the matter of Italiano v Carbone and Others [2005] NSWCA 177 at paragraph 9, relevant extracts of which are as follows:
"9. Section 48Q...makes specific provision with respect to the addition of parties in relation to building claims. Although not materially different in substance, it operates ...to the exclusion of the general provision found in Cl. 28 of the CTTT Regulation 2002. Section 48Q indicates precise formality is not required. A person may be added as a party either by "notice in writing" or "by oral direction..."....This is.... a fundamental matter which requires at least a minimum degree of formality in order to establish jurisdiction of the Tribunal ...It may not require much, but it does require something ..."
I find that the criteria set by the Chief Justice in the foregoing decision have been satisfied by the Tribunal in this instance having regard to the notice of the order in writing to RCRM following the 19 June 2012 directions hearing when the determination was made to order the joinder of RCRM. I find that Section 48 Q must be taken to override the requirements of Part 3A of the Act in so far as any party joined to proceedings pursuant to it. To find otherwise would impose formality in excess of that contemplated by the Chief Justice in the Italiano case referred to above and render the purpose of it meaningless. Given this provision itself contains no specific qualification or proviso stating that it is to be read subject to the conditions imposed by Part 3A, as a matter of construction the ordinary meaning taken from the words themselves, is unconditional, and they must be given their full effect subject to that minimum level of formality required consistent with the foregoing expressed authority.
The second part of the RCRM submission is that "if a building claim has been brought against RCRM", it was not brought until after 13 February 2012 and accepting that the latest possible date that the supply of services occurred was 12 February 2009, it must follow that the filing of the amended claim against RCRM on 11 May 2012 and its subsequent joinder by the Tribunal pursuant to the power in Section 48Q on 19 June 2009, both dates being more than 3 years later must put it clearly beyond the three year requirement, given the terms of Section 48K(3), for the Tribunal to derive jurisdiction.
The applicant's submission on the other hand is that the relevant date for the purpose of Section 48K(3) is not the date of filing against RCRM or the date of joinder pursuant to the power in Section 48Q, but rather the date upon which the claim was first lodged .It argues that the relevant date is 12 July 2011, the date upon which the applicant notified the OFT of the dispute with Redgrave .
The applicant says that the meaning of the words "the date on which the claim was lodged" in Section 48K(3) of the Act refers to the date upon which the complaint was lodged at the OFT.
RCRM relying on a different aspect the authority of Italiano v Carbone referred to above argues that the following words of Basten JA at paragraph 40 of that decision prove its contention: "The Home Building Act requires that a building claim be brought no more than three years after the last date on which any services were supplied: S48K(3). As the work undertaken by the claimant, ...was not completed until December 2000, it would have been open to the First Opponent to make such a claim .....in relation to the supply of building services up until December 2003".
I am not satisfied that RCRM reliance on this aspect of the Italiano decision supports the proposition contended by it that the words "the date upon which the claim was first lodged" and "(the date upon which) a claim be brought" are synonymous. Whether or not that is the meaning conveyed by Basten JA's words, I find that the reference to the word "claim" in Section 48K(3) of the Act as distinct from the word "dispute" in Sections 48C and 48D of the Act suggests that the intended meaning of "the claim was first lodged" relates to the commencement of the proceedings in the Tribunal. In that event the RCRM submission that the applicant's claim in contract relating to the supply of building services is beyond jurisdiction because the claim was not lodged or brought within the three years , might be sustainable, if that were the only basis upon which the applicant's claim was brought. It is unnecessary to determine the latter point finally, for the reasons expressed below in paragraphs 36 to 39.
However the alleged breach of contract is not the only string to the applicant's bow. Curiously, the parties in their respective submissions have not addressed the jurisdiction question in so far as it relates to the alleged breach of statutory warranties under Section 18B of the Act and the defects arising as a consequence of such breaches. There can be no question that any claim in respect of alleged breach of warranty is well within time given the seven year limitation period for such claims expressed in Section18E of the Act.
Neither party has referenced Section 48K(7) of the Act which is expressed as follows :
The Tribunal does not have jurisdiction in respect to a building claim arising from a breach of statutory warranty implied under Part 2C if the date on which the claim is lodged is after the end of the period within which proceedings for a breach of the statutory warranty must be commenced (as provided by section 18E ).
The parties have not directed attention to any authority which would establish the parameters of jurisdiction vis a vis Sections 48(3) and 48(7). I therefore find that I am in agreement with the author Philip Bambagiotti in his text, Building Disputes and the Home Building Act 1989 (NSW) 2012, where it states:
"There would seem to be no real reason to prefer S 48K(3) over S 48K(7) in respect, specifically, of statutory warranty statutory warranty claims. To prefer subs (3) would effectively neutralise the jurisdiction to which subs (7) relates, and would frustrate an obvious scope for the Tribunal's work."
I find therefore that the Tribunal must derive jurisdiction with respect to this aspect of the claim against RCRM and it is clearly appropriate for it to remain a party to the proceeding with regard to the claim for alleged breach of statutory warranties. Given that RCRM should remain a party anyway on the latter basis it is only appropriate for a final determination of jurisdiction in so far as it relates to breach of contract also, to await final determination following a full hearing. For the foregoing reasons the answer to the question whether the Tribunal has jurisdiction to hear the claim against RCRM is "yes".
Question (iii) Whether a contract existed and if so, who were the parties to that contract and what were its terms.
The applicant relies on various documents and oral assertions in support of the claim that a contract between him and one or other or both the respondents existed. The primary documents relied upon are the SOW and PS neither of which are signed by any of the parties to the alleged transaction. There would appear no dispute that the invoices were prepared by Redgrave but it cannot be inferred from the face of the invoices themselves that they establish the existence of a contract nor the identity of the contracting parties without reference to evidence from both the author and recipient of the invoices and possibly some of the suppliers/contractors named in those invoices.
The respondents argue in their submission that there is uncertainty generally in relation to the documents relied upon in support of the existence of a contract. I do not intend to list all the issues raised but the absence of names and signatures of anyone coupled with unexplained handwritten notes and the various references to "TBC" on the SOW, all support the respondent's contention as to uncertainty.
I therefore find as stated earlier in relation to Question (i) that without hearing from the parties in relation to the testimony of each of them under cross examination in order to assess which of the conflicting versions should be accepted it is not appropriate to determine this question on the papers preliminary to a formal hearing.
Question (iv) Whether the Tribunal has jurisdiction to deal with pleadings derived from the Civil Liability Act 2002, specifically, pleadings in relation to apportionment
40 The applicant contends that the provisions of the Civil Liability Act 2002 (CLA) with regard to proportionate liability do not apply to proceedings before this Tribunal.
The applicant says that the CLA is not an Act identified in Section 5 of the CTTT Act over which it is granted jurisdiction.
The applicant argues that the decision of Senior Member Durie in Nielsen v Building Masters Aust (2012) NSWCTTT 185 in which that part of a builder's defence relating to proportionate liability was struck out, supports the applicant's assertion here also. I am not satisfied however that the Nielsen decision to strike out the apportionment defence was on the basis of a lack of jurisdiction.
It is further argued that the fact that Parliament has since amended the CLA to remove specifically the jurisdiction of the CTTT in relation to proportionate claims by the 2011 amendments to the Act does not mean that the position was prior to that amendment that the Tribunal did have such jurisdiction.
The respondents submit that the list of Acts conferring jurisdiction on the Tribunal in Section 5 of the CTTT Act is not an exhaustive one and that there are Acts not mentioned in it over which the Tribunal regularly exercises jurisdiction which are not mentioned in Section 5.
The respondents also rely on numerous earlier decisions of the Tribunal which do purport to exercise jurisdiction in relation to proportionate liability and further assert that because the proceedings in this matter were commenced on 3 August 2011 the Home Building Amendment Act 2011 (HBAA) does not apply. The respondents refer specifically to decisions of the Tribunal in support of their contention namely Bailey v Ciamerralla [2013] NSWCTTT 39 and Hoffman v Wilson Betamix Concrete and Rickaby [2011] NSWCTTT 427 where the Tribunal made determinations in relation to apportionment defences.
The relevant provision of the CLA since the HBAA took effect is as follows:
Section 34(3A) "(3A) This part does not apply to a claim in an action for damages arising from a breach of statutory warranty under part 2C of the HBA1989 "
This provision has to be read in conjunction with the transitional provisions of the CLA specifically Part 13 Clause 41 which reads as follows: "41 Operation of Proportionate Liability Amendment
The amendment of s 34 by the HBAA 2011 extends to civil liability arising before commencement of the amendment but not so as to effect proceedings commenced before the commencement of the amendment whether or not the proceedings were finally determined before the commencement of the amendment".
The decision in Bailey v Ciarramella was one of my own in which I did assume jurisdiction on the basis that the transitional provision above did not exclude it. There was no apportionment made in that case because the builder did not comply with the requirements of the CLA S 35A(1)(b) as to the giving of notice not because of any want of jurisdiction .
The case of Hoffman, a decision of Member Smith dated 14 September 2011 predated the HBAA. Member Smith in that decision exercised jurisdiction in apportioning liability pursuant to Section 35 of the CLA, between the builder and the concrete subcontractor.
I find that both of those authorities are supportive of the respondents' contention. On that basis the answer to Question (iv) must be "yes" if the proceedings were commenced prior to the HBAA coming into force as is the case in this instance.
ORDER
That the Registrar list the matter for directions not before 19 February 2014.
N Correy
Senior Member
NSW Civil and Administrative Tribunal
13 February 2014
I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.
Registrar
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
Decision last updated: 15 September 2014
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