Shal-Houb v Assaf

[2002] NSWSC 912

CITATION:	Shal-Houb v Assaf [2002] NSWSC 912
CURRENT JURISDICTION:	Common Law Division Administrative Law List
FILE NUMBER(S):	SC 30074/02
HEARING DATE(S):	10 October 2002
JUDGMENT DATE:	25 October 2002
PARTIES :	Frank Shal-Houb - Plaintiff Nazih Assaf - First Defendant Mona Assaf - Second Defedant Consumer, Trader & Tenancy Tribunal - Third Defendant
JUDGMENT OF:	Dunford J

COUNSEL :	DA Doyle (solicitor) - Plaintiff IE Davidson - 1st & 2nd Defendants
SOLICITORS:	The Builders' Lawyer - Plaintiff Giles Payne & Co - 1st & 2nd Defendants Submitting Appearance - 3rd Defendant
CATCHWORDS:	ADMINISTRATIVE LAW APPEAL - application for rehearing - Consumer, Trader and Tenancy Tribunal - STATUTORY CONSTRUCTION - Consumer, Trader and Tenancy Tribunal Act 2001 - transitional provisions.
LEGISLATION CITED:	Consumer, Trader and Tenancy Tribunal Act 2001, ss 68 & 89, Sch 6, cll 3, 6 & 8 Fair Trading Tribunal Act 1998, ss 21, 60, 61 & 63 Fair Trading Tribunal Regulation 1999, cl 19 Home Building Act 1989, ss 10, 66 & 94 Supreme Court Rules 1970, Pt 51A r 13
DECISION:	Appeal fails, Summons dismissed.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

DUNFORD J

Friday, 25 OCTOBER 2002

30074/02 Frank Shal-Houb v Nazif Assaf & ors

JUDGMENT

1 HIS HONOUR: By Summons filed 4 September 2002, the plaintiff Frank Shal-Houb seeks an order that matter no. BU 2000/3593 in the Consumer Trader and Tenancy Tribunal (“CTTT”) be remitted to that Tribunal for rehearing and redetermination of all issues and that execution on the existing orders be stayed until the determination of the appeal.

2 The original order in the proceedings which the plaintiff seeks to have reheard was in fact made by the Fair Trading Tribunal constituted under the Fair Trading Tribunal Act 1998 (“the old Act”) which was replaced by the CTTT constituted by the Consumer, Trader And Tenancy Tribunal Act 2001, no. 82 which commenced on 25 February 2002 (“the new Act”).

3 The original application was commenced by the first and second defendants (“the defendants”) in the Home Building Division of the Fair Trading Tribunal on 28 March 2000 claiming $280,328.33 for damages arising out of the alleged breach by the plaintiff and his company (Fresh Tec Building and Plumbing Pty Limited), of a contract for the performance of residential building work, together with interest and costs.

4 The application was heard on 3 and 4 October 2000 and 19 February 2001, and Written Submissions closed on 26 February 2001. The Tribunal delivered its decision on 12 March 2001 when it ordered the plaintiff to pay to the defendants $160,853 on or before 12 April 2001 together with costs to be assessed. The Tribunal’s reasons extended over 37 pages and are annexed to the affidavit of Darren Charles Kane (the defendants’ solicitor) sworn 30 September 2002.

5 On 22 March 2001, the plaintiff applied for a rehearing pursuant to s 63 of the old Act. On 23 July 2001, the Tribunal granted a stay of the orders made on 12 March 2001 pending the determination of the rehearing application, and on 20 August 2001, the application for a rehearing was refused and the stay of proceedings set aside. Meanwhile on 30 May 2001 the defendants registered a certificate of the judgment in the District Court at Sydney and on the same day the defendants caused a bankruptcy notice to be served on the plaintiff.

6 On 20 September, a second application for a rehearing was lodged by the plaintiff and on 17 October 2001 that application was also refused. On 13 November 2001 the defendants caused a bankruptcy petition to be filed against the plaintiff and this was served on 22 November.

7 On 10 December 2001 a third application for a rehearing of the original application was lodged. On 25 February 2002, the new Act commenced and following a number of inquiries, the plaintiff was informed on about 20 March 2002 by a lady who identified herself as calling on behalf of the CTTT that the Tribunal no longer had jurisdiction to review or decide a rehearing application involving more than $25,000. Then on 29 April 2002 he received a letter which read in part as follows:

“As discussed clause 24 of the Consumer Trader and Tenancy Regulations states that an application for a rehearing cannot be made unless (a) the amount claimed or in dispute is $500 or more but is not more than $25,000, or (b) no amount of money is claimed or in dispute.

It would therefore appear that the Tribunal cannot assist you.”

8 On 22 May 2002, there were apparently negotiations at the District Court between the plaintiff’s and the defendants’ legal advisers and it was agreed that by consent the judgment registered in the District Court would be set aside, the bankruptcy proceedings dismissed and a fresh judgment entered in the District Court as of that day for the same amount. This was apparently done with a view to negotiating a settlement between the parties as appears from the later of the plaintiff’s former solicitors, Russo and Partners, to him dated 22 May annexed to his affidavit of 7 September and the fresh judgment was issued in the District Court on 31 May 2002.

9 Apparently there were no negotiations, or if there were they were unsuccessful, because on 19 July 2002 the defendants caused a Writ of Execution to issue out of the District Court, on 22 August a seizure was effected by the sheriff, and on 4 September 2002 the present Summons was filed. To date no monies have been paid to the defendants pursuant to the order made on 22 March 2001 or the judgment based thereon registered in the District Court. On 1 October 2002 a Stay of Execution was granted, pending the determination of these proceedings.

10 The Fair Trading Tribunal Act 1998 established the Fair Trading Tribunal (s 6), organised into divisions, including the Home Building Division (s 12(1)(b)) with jurisdiction to decide matters and make orders etc as conferred on it by any Act or law (s 21), including s 66 of the Home Building Act 1989. The orders and rulings of the Tribunal were not subject to review by way of prerogative, declaratory or injunctive relief, except in cases relating to the jurisdiction of the Tribunal, or where a party to proceedings in the Tribunal had been denied natural justice (s 60) and there was a right of appeal to the Supreme Court on questions of law except where the Regulations precluded such appeal (s 61). Rehearings of proceedings in the Tribunal were governed by s 63 which was as follows:

(1) Except where the regulations preclude the making of an application under this section, a party to proceedings before the Tribunal may, in the manner and within a time prescribed by the regulations, apply to the Chairperson for an order directing that the matter be reheard by the Tribunal, on the ground that the applicant may have suffered a substantial injustice because:
(a) the decision of the Tribunal was not fair and equitable, or
(b) the decision of the Tribunal was against the weight of evidence, or
(c) evidence that is now available was not reasonably available at the time of the hearing.
(2) The Chairperson is not to grant the application unless, on the face of the application, it appears to the Chairperson that the applicant may have suffered a substantial injustice.
(3) If the application is granted, the Chairperson is to determine the constitution of the Tribunal in a manner appropriate for the purposes of the rehearing, having regard to the circumstances of the case and the requirements of natural justice.
(4) The matter is to be dealt with as a hearing de novo by the Tribunal as constituted under subsection (3).
(5) Regulations made for the purposes of subsection (1) may preclude the making of an application under this section:
(a) in cases where the amount claimed or disputed in the matter concerned exceeded $25,000 (or such other amount as may be prescribed), or
(b) in cases of any prescribed class or description.

11 Clause 19 of the Fair Trading Tribunal Regulation 1999 was as follows:

(1) An application for a rehearing under section 63 of the Act must be made in writing addressed to the Registrar and filed with the Tribunal within 14 days after receipt of written notice of the decision concerned, except as provided by subclause (2).
(2) If a written statement of reasons for the Tribunal's decision is duly requested, the time prescribed by subclause (1) is extended to 14 days after receipt of the statement.
(3) If the applicant for a rehearing alleges that a rehearing is justified because he or she did not receive notice of the hearing of the proceedings, the Registrar or other officer accepting lodgement of the application may require that allegation to be verified by oath of the applicant.
(4) Only one rehearing may be granted at the request of any one party to the matter concerned, unless the Chairperson, being satisfied that in the special circumstances of the case this subclause should not apply, by order permits a further rehearing.

12 The Consumer, Trader and Tenancy Tribunal Act 2001 no. 82 which as previously noted, effectively commenced on 25 February 2002, established the CTTT (s 5) like its predecessor divided into divisions (s 10) with jurisdiction conferred on it by any Act (s 21) including the Home Building Act 1989. It contains similar provisions to the Fair Trading Act relating to prerogative relief and appeals to the Supreme Court (ss 65, 66) and rehearings by the Tribunal are dealt with in s 68 as follows:

(1) A party in any proceedings that have been heard and determined by the Tribunal ("the completed proceedings") may, in the manner and within the time prescribed by the regulations, apply to the Chairperson to have the completed proceedings reheard by the Tribunal.
(2) The grounds on which such an application may be made are that the applicant may have suffered a substantial injustice because:
(a) the decision of the Tribunal in the completed proceedings was not fair and equitable, or
(b) the decision of the Tribunal was against the weight of evidence, or
(c) significant new evidence has arisen (being evidence that was not reasonably available at the time the completed proceedings were being heard).
(3) The applicant may request that the rehearing be limited to the matters specified in the application.
(4) If the applicant is relying on significant new evidence as a ground for the rehearing, the applicant must establish or otherwise produce the new evidence in support of the application.
(5) The Chairperson is not to grant the application unless:
(a) each other party in the completed proceedings has:
(i) been notified and given a copy of the application, and
(ii) been given an opportunity to respond in writing to the application within the time prescribed by the regulations, and
(b) the Chairperson has taken into consideration any such response.
(6) Subsection (5) does not apply in relation to such classes of applications as may be prescribed by the regulations.
(7) The Chairperson is not to grant the application unless it appears to the Chairperson that the applicant may have suffered a substantial injustice.
(8) The Chairperson's decision whether to grant or refuse the application:
(a) may be made without the need for any hearing or meeting, and
(b) is not to be considered to be part of the Tribunal's proceedings, and
(c) is final and not subject to review of any kind.
(9) If the application is granted, the Chairperson is to determine:
(a) the constitution of the Tribunal in a manner appropriate for the purposes of the rehearing (having regard to the circumstances of the case), and
(b) the matters that are to be reheard.
(10) The rehearing is to be dealt with by the Tribunal as a fresh hearing of the matters to be reheard, but it does not give rise to any further rehearing under this section.
(11) Subsection (9) does not prevent the Tribunal from dealing with any matter that arises during the rehearing so long as it is a matter that is related to the completed proceedings.
(12) If, in relation to any completed proceedings, more than one application for a rehearing is granted by the Chairperson, all of the matters to be reheard are to be reheard together.
(13) A person cannot make an application under this section for a rehearing of completed proceedings if:
(a) the amount claimed or disputed under the completed proceedings was more than $25,000 (or such other amount as may be prescribed by the regulations), or
(b) the person is a corporation and the matter relates to a dispute under the Consumer Credit (New South Wales) Act 1995.
(14) The regulations may exclude the making of an application for a rehearing under this section in cases of any prescribed class or description.

13 The Fair Trading Tribunal Act 1998 was repealed (s 88) and s 89 provided for the transitional provisions in Schedule 6 of the new Act to have effect.

14 Clause 3 of Schedule 6 provides that from the date of commencement of the new Tribunal no application can be made to bring any matter before a former Tribunal (including the Fair Trading Tribunal) but the former Tribunal continues to exist for the purpose of the exercise by that Tribunal of its functions under clause 6. Clause 6(1) is as follows:

(1) Proceedings in a former Tribunal (including any proceedings in a former Tribunal that are the subject of an appeal to the Supreme Court) that:
(a) were instituted before the relevant date, and
(b) have not been finally determined before that date,
may be continued and determined as if this Act had not been enacted, and for that purpose the provisions of any Act that would have applied to or in respect of the proceedings had this Act not been enacted continue to apply.

15 Clause 8 of the Schedule is as follows:

An application for the rehearing of a matter by a former Tribunal that was made before the relevant date is, if the application has not been dealt with by that date, to be dealt with in accordance with this Act as if the application had been made under this Act.

16 The main ground of appeal relied on by the plaintiff was that having regard to cl 8 of Sch 6 his third application for a rehearing lodged before the commencement of the new Act was not subject to s 68(13) of that Act and accordingly that the Tribunal was in error in refusing the rehearing in reliance on that subsection.

17 The defendants, whilst submitting that the Tribunal was correct in its construction of cl 8 of Sch 6, also sought to rely on other grounds justifying the refusal of the rehearing. Objection was taken to the defendants relying on such other grounds as no Notice of Contention had been filed in accordance with SCR Pt 51A r 13. In reply to this objection the defendants objected that the plaintiff’s Summons was out of time as it had not been filed within 28 days after the notification in writing of the refusal of the rehearing dated 23 April 2002 and there was no application for an extension of time. After some short discussion both parties agreed not to press their technical objections, but to proceed with the merits of the appeal.

18 The third application for rehearing was dated 10 December 2001 and was made pursuant to s 63 of the old Act and cl 19 of the Regulation. Although s 63(5) authorised the making of Regulations precluding the making of such an application in cases where the amount in dispute exceeded $25,000, no such Regulation had been made and the application was competent as to the amount in issue at the time it was filed.

19 However, when the new Act came into force on 25 February 2002, cl 8 of Sch 6 provided that the application for a rehearing was to be dealt with in accordance with the new Act “as if the application had been made under (the new) Act”. If this application had been made under the new Act it would have been incompetent because the amount in issue was more than $25,000 (s 68(13)), but the plaintiff however submitted that cl 8 only has effect after the commencement date and so the lodging of the application having predated such commencement, s 68 (13) does not apply.

20 However, the clause does not merely provide that the application is to be dealt with under the new Act, but provides that it is to be dealt with under the new Act “as if the application had been made under (the new) Act”, thereby expressing a clear legislative intention that the application of the new Act is deemed to date back to the lodging of the application. This legislative intention is made clear by comparison with cl 6 dealing with pending proceedings as that clause provides that such proceedings “may be continued and determined as if (the new) Act had not been enacted”. Applications for rehearing are not to be dealt with “as if the (new Act) had not been enacted”, but are to be dealt with “as if the application had been made under (the new) Act”. The difference in language is striking and must, in my opinion, be regarded as deliberate and given effect to.

21 This construction is confirmed by clause 3 of Schedule 6 because the old Tribunal continues to exist and any person holding office as a member of the former Tribunal (which would include the Chairperson) continues to hold office but only for the purpose of exercising functions under clause 6, but not for the purpose of exercising functions under clause 8.

22 It follows that the Chairperson was correct in refusing to grant the third rehearing application by reason of s 68(13) of the new Act.

23 That is of itself sufficient to dispose of this appeal. But it is desirable that I also deal with some of the other points that were raised.

24 No matter what construction is given to the effect of cl 8 on the limitation as to amount contained in s 68(13), on any view of the matter, the new Act must apply to the decision of the Chairperson whether or not to grant the rehearing. Even if s 68 of the new Act does not govern the making of the application it certainly governs the determination of the application and subs (8) provides, inter alia, that the Chairperson’s decision whether to grant or refuse the application is not to be considered to be part of the Tribunal’s proceedings and is final and not subject to review of any kind. The refusal of the application therefore cannot be the subject of an appeal pursuant to s 67 of the new Act because that section only applies to “proceedings” of the Tribunal and not to decisions of the Chairperson and subs (8)(c) would seem to exclude review by way of prerogative, declaratory, or injunctive relief.

25 Whether this subsection constitutes an effective privative clause was not argued at any length and need not be decided in the present proceedings for two reasons: firstly, because these are proceedings by way of appeal and not an application for prerogative relief, and secondly, because I am satisfied that the Chairperson was correct in his construction of cl 8 and no error of law or failure to exercise jurisdiction has been shown.

26 There were however, two other defects in the application for rehearing lodged 10 December 2001. Firstly, cl 19(1) of the Fair Trading Tribunal Regulation 1999 required an application for a rehearing under that Act to be made within 14 days after written notice of the receipt of the decision concerned (a similar requirement is contained in cl 22 of the CTTT Regulation 2002, cl 22). This application was for the rehearing of the claim which had been determined on 12 March 2001, so it was considerably out of date and therefore incompetent at the time it was lodged. The defendant submitted that it was also incompetent because on two previous occasions a rehearing had been refused and attention was directed to cl 19(4) but that clause has no application as it relates to more than one rehearing being granted and in this case the previous applications for rehearings had been refused.

27 The other defect in the third application was that it failed to show a substantial miscarriage of justice within the terms of s 63(1) of the old Act or s 68(2) of the new Act.

28 It was submitted for the plaintiff that there were errors of law in the original decision and that such errors of law constituted a substantial miscarriage of justice within the section. Those alleged errors of law related to the retrospectivity of amendments to s 94 of the Home Building Act and the prohibition on an unlicensed or uninsured builder enforcing any remedy for breach of contract (ss 10, 94 Home Building Act) and whether those provisions prevented the plaintiff accepting what was claimed to be a repudiation of the contract by the defendants. However, in both the old and new Act, the substantial miscarriage of justice must be because of the decision of the Tribunal not being fair or equitable, or against the weight of evidence or because evidence has become available which was not available at the time of the hearing. Errors of law, on the other hand, were provided for by appeals under s 61 of the old Act (s 67 of the new Act).

29 It may be arguable, and I express no opinion thereon, that an error of law could result in a decision not being fair and equitable, but no such claim was made in the application of 10 December 2001. The only ground set out therein on which it was claimed that the plaintiff had suffered a substantial miscarriage of justice was that evidence was available which had not been available at the time of hearing, and the particulars specified were:

1. Requirement for home warranty insurance on owner/builder work did not apply in 1988 but as from 1 July 1999.
2. Owner/builder permit admitted by Mr Assaf (defendant) in Statement.

30 On any view of the matter, these were not facts of which evidence had only become available after the original hearing, and irrespective of the amendments to s 94 of the Home Building Act, the plaintiff was precluded from recovering damages or pursuing any other remedy for breach of contract because he was unlicensed (s 10(3)(a)). Moreover, the only conclusion that could be drawn from the evidence, including the evidence on the appeal (Ex. 1), was that insurance which complied with s 92(1) was never in force in relation to the specified contract or building work. It follows that even if the application for a rehearing was within time and within the jurisdictional limits, the Chairperson would have been required to refuse it.

31 For these reasons the appeal fails and the Summons is dismissed with costs, and the Stay of Execution ordered on 1 October 2002 is dissolved.

32 As to the costs reserved on 1 October, the present defendants made an application for security for costs in which they were unsuccessful. It seems therefore that they should not have the costs of these proceedings, but, as he has failed in the substantive appeal, neither should the plaintiff. I therefore order each party to pay their own costs of the proceedings of 1 October.

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Last Modified: 10/28/2002