Ryde City Council v Tourtouras - [2007] NSWCA 218

NEW SOUTH WALES COURT OF APPEAL

CITATION: RYDE CITY COUNCIL v TOURTOURAS [2007] NSWCA 218

FILE NUMBER(S):
40599/06

HEARING DATE(S): 14 August 2007

JUDGMENT DATE: 23 August 2007

PARTIES:
Ryde City Council - Claimant
George Tourtouras - First Opponent
Helen Tourtouras - Second Opponent

JUDGMENT OF: Santow JA McColl JA Basten JA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 3176/04

LOWER COURT JUDICIAL OFFICER: Williams DCJ

LOWER COURT DATE OF DECISION: 30 August 2006

COUNSEL:
M.B.J. Lee - Claimant
I.D. George - Opponents

SOLICITORS:
Marsdens Law Group, Campbelltown - Claimant
David Geddes - Opponents

CATCHWORDS:
JURISDICTION – review of referee’s report by judge of District Court – review of findings of fact - proper scope of discretion - Uniform Civil Procedure Rules r 20.24.[ ][ ]JURISDICTION – appeal from decision of judge of District Court reviewing report of referee – application of Supreme Court Act 1970 (NSW) s 75A.

LEGISLATION CITED:
[Administrative Decisions (Judicial Review) Act] 1977 (Cth), s 5
[District Court Act] 1973 (NSW), s 127
[Supreme Court Act] 1970 (NSW), s 75A
Supreme Court Rules 1970 (NSW), Part 72, r 13
Uniform Civil Procedure Rules 2005 (NSW), r 20.14, r 20.24

CASES CITED:
[Abigroup Contractors Pty Ltd v Sydney Catchment Authority] (2004) 208 ALR 630
[Australian Broadcasting Tribunal v Bond] (1990) 170 CLR 323
[Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission] (2000) 203 CLR 194
[Nine Network Pty Ltd v Kennedy Miller Television Pty Ltd] (unrep, NSWCA, 8 June 1994)
[Super Pty Ltd v SJP Formwork (Aust) Pty Ltd] (1992) 29 NSWLR 549

DECISION:
(1) Grant leave to appeal from the judgment given in the District Court on 30 August 2006.[ ][ ] (2) Direct the Appellant (Ryde City Council) to file the draft notice of appeal which accompanied its summary of argument within 7 days.[ ][ ] (3) Allow the appeal and set aside orders 1-5 made in the District Court.[ ][ ] (4) In lieu thereof:[ ][ ] (a) adopt the report of Referee Goldstein dated 10 July 2006;[ ][ ] (b) give judgment in favour of the plaintiffs in the District Court proceedings in an amount of $17,111.57, together with interest from 10 July 2006.[ ][ ] (5) Order the Respondents to pay the Appellant’s costs in this Court.[ ][ ] (6) Grant the Respondents a certificate under the [Suitors’ Fund Act] 1951 (NSW).[ ][ ] (7) Grant liberty to the parties to file short minutes of order varying order (4)(b) within 7 days, if necessary.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40599/06
DC 3176/04
SANTOW JA
McCOLL JA
BASTEN JA
23 August 2007

RYDE CITY COUNCIL v TOURTOURAS

In June 2000 the Opponents, Mr and Mrs Tourtouras, commenced building works on their property in Gladesville. The works carried out were defective and in February 2001 the Opponents terminated their agreement with the builder. While the works were being carried out, the Council had undertaken two inspections but had failed to identify the defects in the work.

In 2004, the Opponents commenced proceedings against the builder and Ryde City…

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: [2007] NSWCA 218
Decision Date: 23 August 2007

CaseChat Overview and Summary

Ryde City Council appealed to the Court of Appeal of New South Wales against a decision of a District Court judge who had reviewed a referee's report concerning a dispute between the Council and Mr. Tourtouras. The core of the dispute involved the Council's assessment of certain development contributions.

The primary legal issue before the Court of Appeal was the proper scope of a District Court judge's discretion when reviewing a referee's report under rule 20.24 of the Uniform Civil Procedure Rules 1999 (NSW). Specifically, the court considered whether the judge had erred in reviewing the referee's findings of fact and substituting their own conclusions.

The Court of Appeal held that a review under rule 20.24 was not a full rehearing of the matter. Instead, it was a review of the referee's report, and the judge's discretion was limited to correcting errors of law or fact that were apparent on the face of the report or that led to a manifest injustice. The court found that the District Court judge had exceeded the proper scope of this review by undertaking a de novo assessment of the evidence. The Court of Appeal granted leave to appeal and directed the Council to file its draft notice of appeal.

Orders

Orders of the court

(1) Grant leave to appeal from the judgment given in the District Court on 30 August 2006.

(2) Direct the Appellant (Ryde City Council) to file the draft notice of appeal which accompanied its summary of argument within 7 days.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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