Sharma v Boltror Pty Limited

[2005] NSWSC 790

CITATION:	Sharma & Anor v Boltror Pty Limited & Anor [2005] NSWSC 790
HEARING DATE(S):	3 August 2005
JUDGMENT DATE :	12 August 2005
JURISDICTION:	Common Law Division
JUDGMENT OF:	Associate Justice Malpass at 1
DECISION:	The proceedings are dismissed; the plaintiffs are to pay the costs of the proceedings; the exhibits may be returned.

CATCHWORDS:	Extension of time in which to bring appeal - default and delay - explanation - relevance of quantum and interests of the public - question with respect to a matter of law - misconception as to what was done by Tribunal.
LEGISLATION CITED:	Consumer Trader & Tenancy Tribunal Act 2001, s67
PARTIES:	Benjamin Kumar Sharma (First Plaintiff) Gloria Jean Sharma (Second Plaintiff) Boltror Pty Limited t/as Lake Macquarie Pools (First Defendant) Consumer Trader & Tenancy Tribunal (Second Defendant)
FILE NUMBER(S):	SC 13413/04
COUNSEL:	Mr P T Taylor SC & Mr RJA Sergi (Plaintiffs) Mr F Hicks (First Defendant)
SOLICITORS:	O'Hearn & Bilinsky (Plaintiffs) Cunningham & Adam (First Defendant) IV Knight, Crown Solicitor (Second Defendant)

LOWER COURT JURISDICTION:	Consumer Trader and Tenancy Tribunal of NSW
LOWER COURT FILE NUMBER(S):	HB 03/06861; HB 03/03722
LOWER COURT JUDICIAL OFFICER :	Member R Connolly

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Associate Justice Malpass

12 August 2005

13413 of 2004 Benjamin Kumar Sharma & Anor v Boltror Pty Limited & Anor

JUDGMENT

1 His Honour: In June 1999, the plaintiffs entered into a contract with the first defendant for the construction of, inter alia, a concrete swimming pool. The total cost of the project was $132,226.96.

2 Work was done under the contract and the plaintiffs paid all but the sum of $8,543.26.

3 On 15 November 2002, the first defendant brought proceedings in the Local Court to recover that sum. A cross-claim was filed by the plaintiffs. It claimed an amount in the sum of $40,000.00 in respect of allegedly defective work. On 22 January 2003, the Local Court transferred the proceedings to what was then known as the Fair Trading Tribunal.

4 A contested hearing took place before the Consumer Trader & Tenancy Tribunal (the Tribunal). It involved at least three hearing days. The hearing concluded on 1 December 2003. The decision of the Tribunal was given on 9 July 2004 and written reasons for that decision have been provided by it.

5 The Tribunal made orders as follows:-

1. The respondents/cross applicants Benjamin Kumar Sharma and Gloria Jean Sharma (the Sharmas) are to pay the applicant/cross respondent Boltror Pty Ltd t/as Lake Macquarie Pools (Boltror) the sum of $8,543.26 within 28 days of the date of this decision.
2. The Sharmas are to pay interest on that sum in the amount of $2,165.76 as at 6 January 2004 and accruing at $2.11 per day until paid.
3. Upon the date of payment the Sharmas are entitled to retain $1,399.00 pursuant to the ‘without prejudice’ concession made by Boltror on 1 December 2003.
4. The Sharmas are to pay the costs of Boltror. Costs as agreed or as assessed upon the basis set out in Division 6 Part 11 of the Legal Profession Act 1987.

6 The issues between the parties were summarised in paragraph 4 of the reasons for decision of the Tribunal:-

Put at its simplest the issues between the parties are encompassed in Boltror’s claim for monies owed under a contract to construct a swimming pool; interest and costs, and the claim by the Sharmas disputing the claim for monies owed under the contract/variations; costs; costs of rectification of alleged defective work, loss of enjoyment and certain other miscellaneous costs incurred in respect of the swimming pool in question.

7 The focus of the hearing was on the cross-claim for alleged defective work.

8 There were four components of the cross-claim (which had by then been reduced to the sum of $15,683.05). There was a component for pool repair costs ($1,839.00). There was a component for loss of enjoyment of the pool ($10,000.00). There was a component for an amount paid to Belmont Pool Shop ($3,078.45). This component came to be reduced to $2,079.95. There was a component of an amount owing to Pools Store International ($765.00). This component apparently was also referable to services allegedly provided by Belmont Pool Store.

9 The alleged defective work concerned problems had with an automatic cleaning system (it was referred to as the principal issue – see paragraph 14 of the reasons). It was the claim of the plaintiffs that the filter had failed on a number of occasions. Much of what happened before the Tribunal was devoted to the ascertainment of the cause of that failure.

10 The plaintiffs had relied on, inter alia, two witnesses (Messrs Collins and Turner). Mr Collins had formed the view that the failure had been caused by debris blockage to outlet nozzles. Conflict emerged from their evidence. This saw the preparation of a joint report (between Mr Collins for the plaintiffs and Mr Rejtano for the first defendant). The report was put before the Tribunal on 1 December 2003. It rejected the approach that had been taken by Mr Collins. It contained, inter alia, the following (which was reproduced by the Tribunal in the reasons:-

David Turner and Frank Rejtano simultaneously noticed that the nozzles were of the type that are not supplied with a pre drilled outlet hole and that a hole had been subsequently drilled into the 3 nozzles by the installer of the system was too small in combination to carry the pump out. This is considered the primary cause of the excessive back pressure exerted upon the filter system and taken in isolation may have contributed to the demise of the filter tanks .
[Emphasis added by Tribunal]

11 This appears to have concluded the material proffered by experts. No one from Belmont Pool Store was called (it was agreed that from late 2001 until at least May 2003, it had carried out service on the pool). A decision was made not to call the second plaintiff. The joint report left the first defendant in the position of meeting a different case.

12 It was in the circumstances mentioned in paragraph 27 of the reasons, on the third day of the hearing, that the first defendant came to make its ‘without prejudice’ concession.

13 In the light of the evidence that it had before it, the Tribunal did not accept that the problems had been caused by debris. It regarded what had been said in the joint report as untested theory (which, even if accepted, would not have determined the question of liability). It came to the view that on balance it was not satisfied that the plaintiffs had established that the failure of the filter tank could be attributed to either action or inaction on the part of the first defendant. It also took the view that if liability had been established then there would have been a failure to mitigate damage.

14 A finding was made of failure to give the first defendant notice of the problems (it was not aware until perhaps 17 December 2002). As a consequence of the liability findings, the claims made in respect of sums allegedly paid to Belmont Pool Store and Pool Store Unlimited were rejected. The Tribunal was also not satisfied that there had been a loss of enjoyment of use of the pool.

15 On 3 August 2004, the plaintiffs applied for a rehearing. On 10 August 2004, the application was not granted.

16 There has been some dispute between the parties as to the basis on which the application was not granted. It may be that there were at least two bases for the decision (one of which was lack of jurisdiction).

17 Thereafter, the plaintiffs engaged in correspondence with the Tribunal for the purpose of having the jurisdictional question revisited. The chain of correspondence concluded with a letter from the Tribunal dated 14 September 2004.

18 About five weeks thereafter, the plaintiffs filed a summons in this court. The summons purports to bring an appeal against the decision of the Tribunal made on 9 July 2004 (pursuant to s67 of the Consumer Trader & Tenancy Tribunal Act 2001).

19 The section provides an avenue of appeal in those cases where the Tribunal decides a question with respect to a matter of law. The avenue is available only to a party in the proceedings. The section provides that a reference to a matter of law includes a reference to “a matter relating to the jurisdiction of the Tribunal”.

20 The section is intended to provide a narrow avenue of appeal. The avenue is not equivalent to an avenue of appeal available where there has been error in point of law. There is authority for the proposition that it should be confined to a pure question of law.

21 The appeal was heard on 3 August 2005. In addition to the submissions made during the hearing, the plaintiffs were allowed to make supplementary written submissions.

22 The grounds of appeal now relied on are those set forth in the second amended summons filed on 11 July 2005.

23 The grounds are as follows:-

1. The Tribunal erred in law in failing to have any regard whatsoever to the terms and conditions of the contract between the Plaintiffs and the First Defendant in determining the rights and entitlements of the parties under the contract (Decision [4]).
2. The Tribunal erred in law in finding without any evidentiary or other basis that the filter of the pool filter was not attributable to the conduct of the First Defendant (Decision [28]) in circumstances where
(a) The Tribunal had already found that the primary cause of the failure of the pool fitter was the conduct of the First Defendant in drilling holes of too small a diameter in the cleaning nozzles (Decision [27]);
(b) The joint report of the experts retained by the First Defendant and the Plaintiffs found that the First Defendant’s conduct in drilling outlet holes of insufficient size in the cleaning nozzles was the primary cause of the failure of the pool filter (Decision [18]);
(c) There was no basis for, or evidence, excusing the First Defendant in relation to failure of the pool filter, and
(d) The First Defendant conceded, in a concession adopted by the Tribunal, that the First Defendant was liable to pay the cost of a new pool filter (Decision [29]; Tribunal Orders [3]).
3. The Tribunal erred in law in failing to consider the relevant question of whether the failure of the pool filter was, or was caused by, a breach by the First Defendant of the terms of the contract between the parties and instead erroneously focussed on the question of whether “the failure of the filter tank must be attributed to the action/inaction of Boltror” without regard to the terms of the contract (Decision [28]).
4. The Tribunal erred in law in holding that the Plaintiffs failed to mitigate their loss by not informing the First Defendant of the pool filter problem, in circumstances where the Tribunal failed to determine that informing the First Defendant of the pool filter problem would have produced conduct that would have reduced the level of damages (Decision [25], [28]).
5. As a consequence of Grounds 1-4 about, the Tribunal erred in refusing the Plaintiffs’ cross-claim in the Tribunal, and in ordering the Plaintiffs to pay the costs of the Tribunal proceedings.

24 I should add that it was not sought to disturb the order for the payment of the sum of $8,543.26.

25 The appeal has been brought out of time and is presently incompetent. It can only be maintained if an extension of time is granted. The first defendant opposes any extension of time and has filed a notice of motion seeking a dismissal of the proceedings.

26 The course was taken of hearing all matters including both the application for extension and the appeal itself at the same time. The view taken was that the question of the merits of the appeal was relevant to all matters.

27 Before proceeding further, I should make some brief observations concerning the quantum of the plaintiffs’ claim and the disproportionate costs that it has generated. The significant component of the claim is that which seeks an award in the nature of general damages for loss of enjoyment of use of the pool. It does not involve a large sum. The other components are extremely modest in quantum. Despite this, the Tribunal was required to allocated at least three days of hearing time (involving the not-inconsiderable expense of a number of experts). The proceedings have been before this court on a number of occasions and a day was set aside for the hearing of the appeal. This modest litigation has been afforded a luxury which is not in the interests of other litigants who need access to valuable court time. It is in the interests of the public that such modest litigation is expeditiously and finally determined.

28 There was considerable delay in the bringing of the appeal. Whilst documentation was put forward in an endeavour to explain the failure to bring the appeal within time, there was no oral or affidavit evidence from the plaintiffs and/or their solicitors which proffered a full explanation. In my view, these matters, together with the modest amount involved in the appeal and the need for expedition and finality in the resolution of such a dispute, would of themselves suffice to defeat an application for extension of time in this case.

29 Be that as it may, I will now proceed to look at the question of whatever merit may be involved in the appeal.

30 I should say at the outset, that I am not satisfied that any of the grounds fall within the narrow ambit provided by s67 of the Act. The submission that “It is self-evident that each of these questions is a question with respect to a matter of law” seems to me to be unhelpful. Even if a contrary view be taken on this matter, it seems to me that the appeal is misconceived for a variety of other reasons.

31 The first three grounds of appeal were treated as being related. Accordingly, I shall take a similar approach to them.

32 I do not accept that the Tribunal failed to have any regard whatsoever to the terms and conditions of the contract. What it did was address the issues agitated by the parties during the hearing. These issues were summarised and recorded in the reasons.

33 What is now complained of seems to be a consequence of how the plaintiffs presented their case before the Tribunal. The cross-claim failed because the plaintiffs did not prove the breaches alleged in their pleadings.

34 In my view, the submissions made on behalf of the plaintiffs demonstrate the lack of materiality between any absence of express mention of particular terms and conditions of the contract and what was found by the Tribunal.

35 Ground 2 appears to be founded on an assumption that a finding of fact made without supporting evidence sees the Tribunal deciding a question with respect to a matter of law.

36 Leaving that matter aside, grounds 2 and 3 misconceive what was done by the Tribunal. It was dealing with questions of fact and the onus of proof was borne by the plaintiffs. In substance, the Tribunal dealt with the cross-claim on the basis that the plaintiffs had failed to discharge the onus borne by them to prove their case on the balance of probabilities. In other words, it was decided that there was a lack of evidence before the Tribunal to discharge the onus of proof. There was a key finding that the plaintiffs had failed to prove the nexus between what was being claimed and what was done or not done by the first defendant.

37 Once the Tribunal had come to the view that any problems experienced by the plaintiffs were not due to action or inaction on the part of the first defendant, it was unnecessary to make any specific reference to any term or condition of the contract requiring performance by the first defendant thereunder.

38 I should add that even if there had been error in dealing with these questions, it would be error in fact only and would not assist the plaintiffs in this appeal.

39 Ground 4 would only assist the plaintiffs, if they had succeeded on the question of liability. As they did not succeed on that question, it requires no further consideration.

40 For these further reasons, I have come to the view that it would be futile to grant an extension of time.

41 Accordingly, the appeal fails. The proceedings are dismissed. The plaintiffs are to pay the costs of the proceedings. The exhibits may be returned.

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