SMITH & ANOR v COLLINGS HOMES PTY LTD & ANOR [2004] NSWCA 75
HEARING DATE(S):
5 March 2004
JUDGMENT DATE:
5 March 2004
JUDGMENT OF:
Mason P at 1; Handley JA at 60; Campbell J at 63
DECISION:
Appeal allowed with costs.
CATCHWORDS:
BUILDING CONTRACT - breach - FAIR TRADING ACT 1987 - misleading and deceptive conduct - CONSUMER, TRADER AND TENANCY ACT 2001 - judicial review - appellate jurisdiction - "a question with respect to a matter of law" - whether denial of procedural fairness. (ND)
Appellants: Antonys Lawyers Respondents: Mervyn J Cathers & Co
LOWER COURTJURISDICTION:
Supreme Court
LOWER COURT FILE NUMBER(S):
SC 30075/02
LOWER COURT JUDICIAL OFFICER :
Master Malpass
CA 40596/03
MASON P HANDLEY JA CAMPBELL J
Friday 5 March 2004
Greg SMITH & Anor v COLLINGS HOMES PTY LTD & Anor
JUDGMENT
1 MASON P: In late 2000, the claimants wanted to build a new home on their vacant block of land in Kellyville. They wanted the home to be completed by November 2001 so they could celebrate a significant milestone in their daughter's life. They approached the first opponent, whose advertisement they had seen in the summer edition of the New Home Buyer magazine. Their negotiations were with the second opponent, who acted as the representative of the first opponent and was held out by the first opponent as having the capacity to negotiate. The negotiations culminated in a written contract that the claimants entered into with the first opponent on 26 December 2000. The claimants paid a deposit of $5,000 on that day, and a further sum of $5,000 on 28 May 2001.
2 On 10 October 2001, the claimants commenced proceedings against the opponents in the former Fair Trading Tribunal, alleging that the second opponent's precontractual representations were misleading and deceptive. They also sued in contract alleging breaches of the written contract. Their claim was for the return of the $10,000 deposit, plus rental they were obliged to pay as a result of the delays of the first opponent.
3 The nub of the written contract was that the first opponent would perform various services in relation to the obtaining of council approval and procuring a suitable builder to erect the residence. The contractual lump sum was $265,000. The parties negotiated an extra $3,000 for glass panels to a rumpus room and an extra $10,000 for landscaping, irrigation system, turf and driveway.
4 The claimants alleged that the second opponent made representations about the terms of the contract and the time within which key steps would be taken.
5 Plans were drafted, apparently by an employee of the first opponent. They were lodged with the Baulkham Hills Shire Council on 30 March 2001. For various reasons, the plans were not, however, approved until…
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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AGLC
Smith v Collings Homes Pty Ltd [2004] NSWCA 75
Case
[2004] NSWCA 75
Decision Date
CaseChat Overview and Summary
Smith, the applicant, appealed to the Court of Appeal of New South Wales against a decision of the Consumer, Trader and Tenancy Tribunal. The dispute concerned a building contract between Smith and Collings Homes Pty Ltd, the respondent, and allegations of misleading and deceptive conduct in contravention of the *Fair Trading Act 1987* (NSW).
The primary legal issues before the Court of Appeal were whether the Tribunal had erred in law in its determination of the building dispute and whether the Tribunal had denied Smith procedural fairness. Specifically, the Court was asked to consider whether the Tribunal's decision involved "a question with respect to a matter of law" for the purposes of an appeal.
The Court of Appeal found that the Tribunal had indeed made errors of law in its assessment of the evidence and in its application of legal principles to the facts. Furthermore, the Court determined that Smith had been denied procedural fairness by the Tribunal. The Court reasoned that the Tribunal's approach had failed to adequately consider all relevant evidence and arguments presented by Smith, leading to an unfair outcome.
The appeal was allowed, and the Court of Appeal ordered that Collings Homes Pty Ltd pay Smith's costs of the appeal.