Smith v Collings Homes Pty Ltd

[2004] NSWCA 75

CITATION:	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)
LEGISLATION CITED:	Fair Trading Act 1987 Consumer, Trader and Tenancy Act 2001
PARTIES :	Greg SMITH & Anor v COLLINGS HOMES PTY LTD & Anor
FILE NUMBER(S):	CA 40596/03
COUNSEL:	Appellants: S Higgins Respondents: P R Glissan
SOLICITORS:	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 June. There were complaints by the claimants to the second opponent and requests to hurry things along.

6 By July 2001, a builder had not been obtained or agreed upon. At that stage, the second opponent recommended a Mr Spolletti. The claimants checked out his references and were not happy. They requested the second opponent find another builder. There were further delays.

7 On 31 August 2001, Mrs Smith rang the second opponent to check on progress in finding another builder. The second opponent said he was working on it. Later that day, Mr Smith rang him to say that the claimants were not going ahead because things were taking too long. The claimants demanded the refund of the $10,000 deposit, apparently at the time offering to pay the cost of the plans.

8 As indicated, the claimants commenced proceedings in the Fair Trading Tribunal on 10 October 2001. Because of transitional provisions in the Consumer, Trader and Tenancy Tribunal Act 2001 (the CTTT Act), the claim came to be heard and determined in the Consumer, Trader and Tenancy Tribunal, hereafter the Tribunal. Section 28 of the CTTT Act provides:

28 Procedure of Tribunal generally

(1) The Tribunal may, subject to this Act, determine its own procedure.

(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of procedural fairness.
(3) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
(4) The Tribunal is to take such measures as are reasonably practicable to ensure that the parties in any proceedings understand:

(a) the nature of the assertions made in the proceedings and the legal implications of those assertions, and
(b) the procedure of the Tribunal and any decision or ruling made by the Tribunal that relates to the proceedings.
(5) The Tribunal:
(a) is to act as expeditiously as is practicable, and
(b) is to ensure, as far as practicable, that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and
(c) may require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument, and
(d) in the case of a hearing—may require the presentation of the respective cases of the parties in proceedings to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases, and
(e) may require a document to be served outside the State, and
(f) may adjourn proceedings to any time and place (including for the purpose of enabling the parties to negotiate a settlement), and
(g) may dismiss any proceedings if the applicant fails to attend a hearing, and
(h) must, if requested by the applicant, allow the applicant to withdraw the application, and
(i) may dismiss any proceedings if it considers the proceedings to be frivolous or vexatious or for any other reason that appears to it sufficient, and
(j) may order that any proceedings are to be stayed.
(6) The Registrar or Deputy Registrar is to give any party in proceedings that have been stayed under subsection (5)(j), and who was not present or represented when the proceedings were stayed, notice that the proceedings have been stayed.
(7) Subsection (5)(g)–(i) does not apply in relation to proceedings arising under the Strata Schemes Management Act 1996 or the Community Land Management Act 1989 .
(8) Subsection (5)(h) does not apply in relation to proceedings on a building claim arising under Part 3A of the Home Building Act 1989 .

9 There is power to give procedural directions (see s29). Section 35 provides:

35 Opportunity for parties to present case
The Tribunal must ensure that each party in any proceedings is given a reasonable opportunity:
(a) to call or give evidence and otherwise present the party’s case (whether at a hearing or otherwise), and
(b) to make submissions in relation to the issues in the proceedings.

10 The matter was before the Tribunal on 13 December 2001, 21 March 2002, 19 April 2002, 23 April 2002 and 27 June 2002. The claimants appeared for themselves, and Mr Wayne Collings, the second opponent, appeared for himself and the first opponent (cf s36).

11 The Act does not draw a hard and fast distinction between interlocutory hearings and what might be regarded as the trial of an action in a superior court. It is, nevertheless, clear that the earlier dates were taken up in the giving of directions designed to ensure the gathering of documentary evidence and the provision of statements from witnesses proposed to be called. Mr Newhouse was the Tribunal member. Such transcripts as are available indicate that he conducted the proceedings with a mix of informality and firm case management.

12 The Tribunal proceedings culminated in an order dated 24 December 2002, supported by reasons. The order was:

The Tribunal orders that the respondents, Collings Homes Pty Ltd & Wayne Collings jointly and severally pay to the applicants Greg Smith & Annette Smith the amount of $13,747.39 on or before the date which is 35 days from the date of the order made on 15/8/02.

13 It may be observed that there was no order made in relation to a cross-claim made by the first opponent in a document dated 27 March 2002 entitled "Fair Trading Tribunal New South Wales. Answer by Respondent - Building Division.”

14 The Tribunal's reasons for decision listed the documents tendered by the parties and summarised the oral evidence. It would appear that the witnesses were the two claimants and the second opponent.

15 The Tribunal made findings as to credibility generally favourable to the claimants and adverse to the second opponent. The main findings relate to pre-contractual representations that were held to contravene ss42 and 44 of the Fair Trading Act 1987, as well as breaches of contract:

18. I find the Respondents held out that:-
(a) the building works that were the subject of the plans would be completed by November 2001, in time for the Applicants daughter’s first communion;
(b) the plans would be lodged with the council on or before January 2001;
(c) the Respondents’ recommended builder or builders would have an excellent reputation;
(d) the timing and number of introductions to builder;
(e) the fixed price of the works and that the nature of the nature of the building contract to be entered into would reflect that requirement;
(f) retaining walls would not be used in the design; and
(g) and that the First Respondent would liaise with council to facilitate the council’s development approval.
I find from the evidence before me, that the Respondents intentionally entered into a course of conduct that led the Smiths to believe that they could have their home constructed at a price that was illusory and within a timeframe that was unachievable. The carefully crafted structure of Collings Homes quote was a clear attempt to mislead the Applicant’s in this regard and in relation to the service provided by the Respondents.
I find that the Applicants could never have obtained the plans and approvals in time to take advantage of the Respondent’s fixed price quote, and I note that the fixed price actually quoted by the Respondents was below the reasonable price that a reputable builder could build the proposed works.
I am satisfied from the evidence that the Smiths would not have entered into the contract with the First Respondent for the First Respondent to design and procure a builder to construct the Applicants’ home had they been aware of the Respondents’ misrepresentations.
…
22. It flows from my findings above that the Second Respondent contravened section 42 and 44 of the Fair Trading Act 1987. Mr Collings induced the Smiths to enter into contractual arrangements with Collings Homes by misrepresentations and he created a most contrived contractual structure to protect his interests and exploit the naiveté of the Smiths.
The contraventions include:
• representations that Spoletti possessed very high standards of expertise, when the referees did not support such claims;
• representations that the contract price was a reasonable price for the contract works, when the works could not be built for that price;
• representations that Collings would guarantee a fixed contract price when such guarantee was only open for 60 days and subject to conditions that were impossible to fulfil within that time;
• representations that no retaining walls would be required when they were actually required; and
• representations that the works would be completed by the Smiths daughter’s first communion.
And where the owners would not have entered into the subject contracts but for those contraventions, the compensation for the loss or damage suffered by the owners should, in my opinion, provide for restitution which includes a component of delay costs.
23. My findings above in relation to the conduct of Mr Collings lead me to conclude that the First Respondent contravened section 42 and 44 of the Fair Trading Act 1987 as section 70 imputes Mr Collings’ conduct, as a director of Collings Homes Pty Limited, on the First Respondent.
[Subsection (1) and (2) were set out]

24. In addition to the Respondents’ breaches of the Fair Trading Act 1987, I find that the contract between the parties included a warranty that the Smiths’ home could be constructed for a “Fixed Price” and within the time promised by the Respondents. It follows from my findings above that the warranty and price were illusory and the home could not have been and in fact was not constructed in the timeframe promised by the Respondents.

16 The reference, in par 18, to an illusory price is explained more fully in pars 12 and 13 of the reasons:

12. Whilst Mr and Mrs Smith were of the opinion that the price of their new home was fixed for the term of the contract, Mr Collings was quick to point out that the terms of the contract were such that the price was fixed for 60 days. When it was drawn to Mr Collings attention that he had already given evidence to the effect that in the ordinary course of events 60 days would have expired well before the time that the plans could possibly have been prepared and approved, his response was to sheet the responsibility for obtaining approvals onto the Applicants. Collings was of the opinion that if the Applicants were unable to obtain the statutory approvals within the time specified in his quote then the fixed price guarantee simply did not apply.
Mr Collings fixed price guarantee was illusory. Mr Collings tendered a letter from Actron Design Pty Limited dated Wednesday 13 March 2002 that it typically takes “around eight weeks from the initial consultation to the final drawings” and with a minimum 21 day advertising period required by council Mr Collings would have been well aware that it was impossible for the statutory approvals and plans to be completed within the 60 day warranty period, particularly as this period was to run over the Christmas holiday period.
13. In addition, there is substantial doubt about the nature of the Respondents’ assertion that the building contract to be procured would be for a fixed price. Firstly, the inclusions in Mr Collings quote were not complete, as they did not include clearing the site, the cost of painting, internal cleaning and retaining walls, tiling of decking, landings and steps as well as removal of soil and rock to tip.
It follows that any contract procured on such a basis could never be delivered at the fixed price quoted. Evidence was provided from the Sydney Building Information Centre in the form of a letter dated 24 January 2002 (Applicants’ document 18A) estimating the costs of construction at between $363,000.00 and $393,000.00 excluding such items as excavation, piering, detention pits, easements, levies, retaining walls, landscaping, boundary fences, professional fees and other variables. Craig Young homes in its quotation to Mr and Mrs Smith dated 24 July 2001 gave a figure of $348,392.00 and a contract term of 42 weeks.
The Sydney Building Information Centre and Craig Young Homes had the benefit of discussing the Applicants’ plans and requirements; Mr Collings procured the “so called” fixed price contract from Mr Vince Spoletti without any consultations with the Applicants.
Further, it is difficult to accept that Mr Spoletti’s executed building contract was in fact a fixed price contract when Mr Collings says in his “Description of Events” at 21 August 2001 that “no Builder will accept the job unless… they were willing to meet the Builder”.

17 As to damages, the Tribunal's reasons were:

25. The Applicants gave evidence that they relied on the promise of the First Respondent that the premises would be completed by their daughter’s first communion and that as a result of that breach they incurred unnecessary rental expenses.
26. In addition section 68 of the Fair Trading Act 1987 provides that a person who suffers loss or damage by conduct of another person that is in contravention or a provision of Part 3, 4, 5 (section 43 excepted), 5A or 5B may recover the amount of the loss or damage by action against the other person or against any person involved in the contravention.
27. If the matter of such loss or damage arises in connection with a matter the subject of proceedings in the Tribunal, the Tribunal may proceed to decide it, and in so doing may award such sum, and make such ancillary orders, as it thinks fit.
28. The Applicants provided evidence of Mrs Smith’s residential tenancy agreement with Dr Nguyen and Dr Lui under which the weekly rental of $310.00 per week was payable. The applicants claimed the Period from February 2001 to 1 November 2001 by way of rental thrown away as a result of the Respondents’ delay.
29. After hearing evidence of the parties on the reasonable time for drafting plans and obtaining approvals I determined that the Respondents had delayed the approval process by approximately seventeen (17) weeks. The Applicants’ analysis did not take into account the costs of either a mortgage for the 17 weeks or the opportunity costs of 17 weeks interest on their money if the Applicants did not require a mortgage. Accordingly the appropriate measure of damages for such a loss is the total of the payments to Collings Homes together with 17 weeks rental being the delay caused by Collings Homes in the preparation of the plans and the failure of the Respondents to adequately liaise with council less the costs of a mortgage for the completed property for 17 weeks estimated at $2,850.00, I have reduced the rental damages by a notional weekly mortgage payment being $360,000 x 6.9%/52.
30. I consider it just and equitable to reduce the Applicants’ claim from 35 weeks to 17 weeks as the evidence confirmed that 18 weeks was considered a reasonable period to have plans drawn and obtain council consent in the ordinary course of business.

18 Under the heading “Cross Claim”, the Tribunal said:

31. The First Respondent claimed its unpaid contract price by way of cross claim. However as the Respondents successfully argued that the Tribunal did not have jurisdiction to hear the matter under the Home Building Act 1989 but rather was a consumer claim, I was not able to entertain the cross claim under the Consumer Claims Act 1998 . However, given by findings above, the fact that the First Respondent did not press the claim or lead any substantive evidence in that regard at the hearings, even if I had found the jurisdiction under the Home Building Act 1989 , I would have dismissed the cross claim on those bases alone.

19 The opponents commenced proceedings in the Administrative List of the Common Law Division. Their Amended Summons claims a wide range of interlocutory and final orders and declarations. The declarations that are claimed serve as particulars as several of the errors assigned by the opponents. One thing is clear, the opponents were invoking the judicial review jurisdiction of the Supreme Court as set out in s65 of the CTTT Act as well as its appellate jurisdiction as set out in s67.

20 The reasons of the Master under appeal evidence a considerable degree of confusion on this account. They speak in the language of an appeal. The orders favourable to the present opponents speak on the basis of an appeal being upheld. The reasons also do not grapple with the precise language of the sections to which I have made reference.

21 The opponents never suggested that the Tribunal lacked jurisdiction to make the orders that it did. Accordingly, the judicial review portion of the Amended Summons must be read as seeking to engage s 65(3)(b) of the CTTT Act which permits declaratory and prerogative relief on the basis of denial of procedural fairness.

22 As regards to the appellate jurisdiction of the Supreme Court, the relevant provision of s67(1) provides:

67 Appeal against decision of Tribunal with respect to matter of law
(1) If, in respect of any proceedings, the Tribunal decides a question with respect to a matter of law, a party in the proceedings who is dissatisfied with the decision may, subject to this section, appeal to the Supreme Court against the decision.

23 This provision does not state that the appellate jurisdiction is engaged merely because the appeal involves a question of law or an assertion of error of law on the Tribunal's part. It seems to me that it is much narrower, although it is ultimately unnecessary to express concluded views on the matter.

24 In his reasons Master Malpass adverted to an earlier decision of his own, which acknowledged some uncertainty about the matter. Reference should also be made to Custom Credit Corporation Limited v The Commercial Tribunal of New South Wales (1993) 32 NSWLR 489, and Custom Credit Corporation Limited in Liquidation v The Commercial Tribunal of NSW, [1999] NSWSC 1021, James J, unreported 13 October 1999.

25 Apart from the very language of the sub-section, it is to be observed that the very presence of s 65, which provides for judicial review if there is excess of jurisdiction or denial of procedural fairness, provides additional support for a narrower, literal reading of s 67.

26 The proceedings came before Master Malpass who made the following orders (see Collings Homes P/L & Anor v Greg Smith & Ors (2003) NSWSC 567 at 53:

The appeal is allowed. This decision is remitted to the Tribunal and I order a rehearing of the proceedings by it. The first and second defendants are to pay the costs of the Summons. If so entitled they are to have a certificate under the Suitors’ Fund Act 1951 .

27 The claimants seek leave to appeal against these orders. The Court has heard full argument as on appeal.

28 The Master's reasoning is not always easy to understand. This, in part, seems to be a reflection of his somewhat blurry focussing upon the terms of ss65 and 67 and, in part, upon what I respectfully consider to be a misreading of the Tribunal's reasons. Furthermore, on one or two issues going to denial of procedural fairness, the Master's reasons are expressed somewhat tentatively and (I venture to suggest) opaquely: see pars [12], [13] and [27] of his reasons.

29 The Master summarised the facts and set out, or referred to, key paragraphs in the Tribunal's reasons. As to some findings made by the Tribunal, the Master held that they were made in the absence of evidence, with the consequence, it appears, that there was a denial of procedural fairness. The Master cited the judgment of Ireland J in Carpet Fashion Pty Limited v The Consumer Claims Tribunal, Supreme Court of New South Wales Administrative Division, unreported 29 October 1992. Ireland J referred to the judgment of Deane J in Minister for Immigration and Ethnic Affairs v Pochi (1981) 31 ALR 666 at 689, and of the Privy Council in Mahon v Air New Zealand Limited [1984] AC 808 at 821 and 833.

30 In my view, those decisions do not set out the test or standard for finding gateways for relief under ss65(3)(b) or s67(1). They certainly do not establish that "lack of logical sequence between the findings and the end result" (see Master's reasons at [28]) in itself entails denial of procedural fairness or establishes that the Tribunal erroneously "decided a question with respect to a matter of law".

31 The approach adopted in Pochi's Case for finding error of law has not so far been accepted by the High Court or this Court (see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-7, Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 654, Hill v Green (1999) 48 NSWLR 161 at 174-176, Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 84 FCR 411 at 420 to 422).

32 It should also be observed that an error of law based on absence of evidence must mean, for the Tribunal, absence of material, whether strictly admissible according to the rules of evidence or not. This qualification is required in light of s28(2) of the CTTT Act.

33 In the context of denial of procedural fairness, more than absence of logical sequence between findings of primary fact and the end result is required. How much more need not be explored in these reasons.

34 It is appropriate now to turn to the specific errors found by the Master.

(1) The Contractual Warranty

35 At par [32] of his reasons, the Master held:

The finding that the contract included a warranty is said to be an error of law. It seems to be the only breach of contract found against the respondents. It cannot stand with the contract provisions that were earlier found between the parties (see pp 6-7 of the written document) and appears to have been made in the absence of evidence.

36 The claimants accept that this error of law is disclosed in the Tribunal's reasons. Since, however, the Tribunal's orders stand independently on the findings of misleading and deceptive conduct, the claimants are content to move straight past par [32] and attack the strands of reasoning that involve the findings of misleading and deceptive conduct.

37 The claimants are entitled to take this approach whether or not the Court is dealing with judicial review or appellate jurisdiction. Judicial review relief will not be granted if it is futile and if orders under challenge can stand entirely unaffected by a particular matter of complaint. As regards appellate jurisdiction, the principle is stated by Handley and Powell JJA in Minister Administering Crown Lands v Deerubbin Local Aboriginal Land Council (1998) 43 NSWLR 249 at 254-5.

(2) Lack of Evidence Supporting Key Findings of Misleading and Deceptive Conduct

38 I have already set out the findings in the Tribunal's reasons. The Master appears to have concluded that these findings were unsupported by evidence and/or indicative of contravention of the principle that he derived from Pochi's Case that I have earlier discussed. He said this:

33 What is said to be the breach of that warranty appears to rest on what are said to be findings "that the warranty and the price were illusory" and that the home could not have been constructed within "the time frame promised".
34 Leaving aside the puzzling reference to the warranty being illusory, the other findings were made in the absence of evidence.
35 There was no evidence, as at the time of the making of the contract, to suggest that the construction of the home could not have been completed by November 2001. Indeed, it seemed to be common ground that it could have been built within that time.
36 What is meant by the finding that the price was illusory is somewhat unclear. Presumably, it was meant to convey in effect that the estimate of cost was blatantly unrealistic or the like. If that be the case, the Tribunal had before it evidence that there was a builder who was prepared to build the home for the estimate of the total cost. There was evidence of another quotation at a higher price. There was also evidence that there existed a tremendous scope for variation in the cost of a project. In my view, this material cannot be said to be evidence that the price was illusory.

39 One difficulty, amongst several, relating to these findings is the fact that the Tribunal's findings in pars 2-7 of its reasons were not challenged in the Amended Summons heard and determined by the Master. For present purposes, that summons confines itself to the 4 classes of complaint mentioned in pars 6 and 7 of the Summary of the claimants' argument.

40 Furthermore, even if the Pochi principle applied, I could not accept the correctness of the Master's observations. In my respectful view, they disclose that the Master misunderstood the Tribunal's reasons. When the Tribunal used the shorthand statement about an illusory price, it was referring to the earlier passage in its reasons at pars 12 and 13 set out above. The nub of the point being made was that the fixed price was illusory because there was no way that the contract would be ready to be let within the limited period during which the price was fixed according to the terms of the written contract.

41 There is a further reason why the Master's conclusion as to the findings of misleading and deceptive conduct cannot stand in my view. The Tribunal's reasons do not, in my opinion, fall within the description of an (erroneous) decision on a question with respect to a matter of law. The findings were supported by material before the Tribunal and were open to the Tribunal.

(3) Findings as to Damages

42 The Master found, at pars [37]-[41] of his reasons, that the Tribunal misconceived the nature of the claimants' claim as regards delay costs and, in so doing, it did not determine an issue agitated by the parties. I have already set out the key passages from the Tribunal's reasons.

43 In my view, the Master's conclusions cannot be accepted for several reasons: (a) the challenge was not raised in the Amended Summons, nor is there material demonstrating that the parties joined issue about it before the Master; (b) any distinctions as between the Trade Practices Act and the Fair Trading Act are distinctions without a difference in the present context; (c) it is obvious that there was some joinder of issue before the Tribunal about the extent of the damages recoverable by the claimants.

44 As to (c) I do not understand it to be disputed that the claimants’ claimed both the return of the $10,000 deposit and an additional sum to compensate them for losses incurred in being kept out of their anticipated home longer than it was represented that the building work would take. How those losses were to be calculated depended upon the material presented to the Tribunal. That material included documentary evidence about the tenancy agreement that is referred to in the Tribunal's reasons. The Tribunal was not confined, in its manner of calculating compensation, by the precise arguments advanced by the parties, so long as it proceeded fairly.

45 I can see no material indicative of want of procedural fairness in the determination referable to damages. If, as Campbell J suggested in argument, there has been a mathematical error in the computation of one part of the damages, then s50 of the CTTT Act may well offer an appropriate remedy.

(4) Cross-claim

46 The Tribunal's order did not dismiss the cross-claim. This was because the Tribunal did not ultimately consider it had jurisdiction to entertain it. The correctness of that conclusion, which is incontrovertibly a question with respect to a matter of law, has been debated in this Court. The opponents submit that the Tribunal did have jurisdiction and power to award some type of offset with respect to the costs incurred in performance of the contract.

47 They point to s8(2) of the Consumer Claims Act 1928. That sub-section does not permit the Tribunal to entertain a wholesale cross-claim based independently upon a contractual claim. It is possible that it is confined to the situation where there is some paring off of the consumer claim advanced by the consumer. It is possible, however, that in considering that paring off (as I have described it), the Tribunal may, in light of s13 of the Consumer Claims Act, have regard to a wide range of factors, including the type of factors that are referred to in the document referred to as "Answer by Respondent."

48 It is not necessary, in my view, to resolve these issues. The second sentence of par 31 of the Tribunal's reasons offer an independent reason why the cross-claim offset, call it what you may, resulted in no award in favour of the present opponents.

49 The opponents submit that the statement that "the first respondent did not press the claim or lead any substantive evidence in that regard in the hearings" is just wrong and that there was, for that reason, a denial of procedural fairness. This raised for the Master, as it does in a sense for us, a factual issue. On that factual issue, the opponents bore the onus of proof before the Master.

50 It is clear law, in my view, that the burden of establishing facts going to a want of jurisdiction or denial of procedural fairness rests upon the person alleging it (see R v Alley; Ex parte Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 153 CLR 402).

51 The opponents point to the material in Mr Wayne Collings' affidavit of 29 November 2002 at pars 11-14.

52 It is accepted, as I understand it, that the documents mentioned in par 3 of the Tribunal's reasons do not contain any documents showing the computation of the so-called cross-claim. At its highest, the affidavit of Mr Collings says, in effect, that there was a file of documents produced on subpoena to the Tribunal which went to the dollars and cents of the costs actually incurred by the first opponent in its partial performance of the contract. Mr Glissan has informed the Court that he actually saw such a file at some stage in the past. It is unfortunate that the file was not available for tender or tendered before the Master.

53 The affidavit of Mr Collings, unchallenged though it was, rises no higher than indicating that the material in that file was produced, as it were, on subpoena to the Tribunal. Nothing in the affidavit established that Mr Collings was prevented from tendering that material and thereby denied procedural fairness.

54 I have not overlooked the material to which the Master drew attention contained on page 28 of the transcript of the Tribunal hearing on 21 March 2002. The statement there appears in isolation: "There is no more evidence that you need to put on". But the context is quite clear, as I read it, from the surrounding paragraphs. The Tribunal is saying to Mr Collings, "You have complied with the directions for discovery and response to subpoena. Now you will have to comply in the future with directions we are now giving to put on statements of witnesses." It would appear that no witness statements of present relevance were tendered.

55 Mr Collings' affidavit, to which reference has already been made, refers to a typewritten submission he handed up to the Tribunal. That is Annexure D. He says that he presented oral submissions in support thereof. Annexure D seems to be consistent with the document loosely referred to as the cross-claim because it suggests that the opponents were seeking to recover the entire balance of the $33,000 contract price by way of contract price (less 10,000 deposit) by way of their claim for damages. But even if that is not correct, Annexure D does not contain any material about the dollars and cents of the work performed, indeed, no clear identification of what work was performed as distinct from intended to be performed.

56 In my view, the reasons set out in the latter part of par 31 of the Tribunal's reasons do not involve any question of law, nor was it open to the Master to conclude, on the evidence before him, that there had been a denial of procedural fairness going to the matters addressed in the dismissal of the cross-claim.

(5) Other Issues

57 By way of contention point, the opponents sought to challenge the conclusion in par [31] of the Master's judgment. I think there is nothing in this challenge. There was ample material to show that Mr Wayne Collings acted as an agent of the first opponent. This was enough to render the first opponent liable, and him liable as well, in light of s70(2) of the Fair Trading Act, which was set out in the Tribunal's reasons. My guess is that the reference to him being a director was a slip, but, in any event, he was definitely an agent.

58 Finally, to the extent that there is a residual argument based upon some of the ambiguous findings of the Master about want of procedural fairness in matters to which I have not specifically adverted, I am not persuaded that there are findings in the Master's judgment, nor any basis for findings that would assist the opponents. I have indicated the interpretation I have placed upon the transcript of 21 March. It is true that Mr Collings put before the Master a version of the dialogue between him and the Tribunal which was possibly capable of supporting a claim of want of procedural fairness, possibly in a matter material to some issue. But there was no finding by the Master. There was a denial by Mr and Mrs Smith, who were cross-examined on their affidavit, as was Mr Collings.

59 For these reasons, I would make the following orders:

1. Grant leave to appeal subject to the Notice of Appeal being filed within 14 days.
2. Appeal allowed with costs.
3. Judgment and orders of the Master set aside.
4. In lieu thereof, order that the proceedings in the Administrative Law List be dismissed with costs.
5. The opponents/respondents to have a certificate under the Suitors Fund Act , if qualified.

60 HANDLEY JA: I agree with the reasons of the President and the orders he has proposed. I will only add some brief remarks about the scope of s67(1) of the CTTT Act. This provides for a more restricted right of appeal on the question of law for the Supreme Court than is ordinarily provided for in the State statutes. It is arguable that the right of appeal extends to legal decisions where such a decision was necessarily made by the Tribunal but is not apparent on the face of its decision.

61 It does seem clear, on any view, that the section prevents a new point of law being taken for the first time on appeal. It is not necessary for this Court to extend the right of appeal under section 67(1) in this case. I say nothing further on this section.

62 I agree with the orders proposed by the President.

63 CAMPBELL J: I agree with the reasons and orders proposed by the President.

64 MASON P: The orders will be as indicated.

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Last Modified: 03/31/2004