Sekuloska v Sekuloski

[2012] NSWWCCPD 10

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:			Sekuloska v Sekuloski [2012] NSWWCCPD 10
APPELLANT:			Ankica Sekuloska
RESPONDENT:			Goce (George) Sekuloski
INSURER:			Employers Mutual NSW Limited
FILE NUMBER:			A1-4704/11
ARBITRATOR:	Ms F Robinson
DATE OF ARBITRATOR’S DECISION:			19 October 2011
DATE OF APPEAL HEARING:		1 March 2012
DATE OF APPEAL DECISION:			5 March 2012
SUBJECT MATTER OF DECISION:			Deemed worker; Sch 1 cl 2 of the Workplace Injury Management and Workers Compensation Act 1998; whether contract existed between husband and wife; intention to enter legal relations; consideration
PRESIDENTIAL MEMBER:			Deputy President Bill Roche
HEARING:			Oral
REPRESENTATION:			Appellant:	Mr P Stockley, instructed by Edwards Michael Lawyers
Respondent:	Mr M Eirth, instructed by Michael Evers & Co
ORDERS MADE ON APPEAL:			The Arbitrator’s determination of 19 October 2011 is revoked and the following orders made in its place: “1.    Award for the respondent. 2.    No order as to costs.” Each party is to pay his or her own costs of the appeal.

INTRODUCTION

1. This appeal concerns the alleged formation of a contract between a husband and wife for the performance of building work by the husband on their jointly-owned family home. The principal issue in dispute was whether a valid contract existed. That issue depended on whether the agreement made between the husband and wife was supported by real consideration and was intended to create legal relations. The Arbitrator held that the parties had formed a valid contract.

BACKGROUND

1. The respondent (Mr Sekuloski) and the appellant (Mrs Sekuloska) are husband and wife. They live together at Holsworthy in a home they own as joint tenants. The home was the subject of a mortgage to RAMS Home Loans (RAMS) in their joint names. In about 2003, they began planning to extend and renovate their home. To fund the work, they decided to borrow money against their mortgage.

2. It was their intention that tradesmen would do most of the work, but Mr Sekuloski and other family members would do some work. Mr Sekuloski was to do some carpentry, the brickwork, wall-panelling and finishing work. Whether Mr Sekuloski was under any contractual obligation to perform that work is disputed and discussed later in this decision.

3. On 16 March 2005, Mrs Sekuloska obtained an owner/builder permit. The paperwork and dealings with the council were in her name because Mr Sekuloski worked 12–13 hours per day five days per week in his truck-driving business. As holder of the owner/builder permit, Mrs Sekuloska obtained a workers compensation policy with Employers Mutual NSW Ltd (Employers Mutual) on 13 May 2005 to cover family members working on the property.

4. Mr Sekuloski started work on the property in late May 2005.

5. On 4 September 2005, Mr Sekuloski injured his right leg while working on the property and claimed compensation. In a statement dated 15 September 2005, he said that he and his wife agreed that he would do some of the work on the renovations, that she would keep a record of…