Sorbello & Donnelly v Whan - [2007] NSWSC 951

CITATION: Sorbello & Donnelly v Whan [2007] NSWSC 951

HEARING DATE(S): 14 June 2007

JUDGMENT DATE :
29 August 2007

JUDGMENT OF: Price J at 1

DECISION: Decisions on the questions the subject of each of the appeals remitted to the Consumer, Trader and Tenancy Tribunal and re-hearings ordered. In each of the appeals, the first defendant and third defendant are to pay the costs of the plaintiffs.

CATCHWORDS: Appeal from Consumer, Trader and Tenancy Tribunal Act s 67 - question with respect to matter of law - definition of owner-builder - s 3 Home Building Act 1989 - primary facts did not necessarily lead to conclusion that an application for an owner-builder permit must have been rejected - no requirement of eligibility for an owner-builder permit to be an owner-builder - Tribunal has jurisdiction to make orders sought - procedural fairness not denied - limits on matters to be dealt with on appeal pursuant to s 67 - consideration of powers under subs. 67(3)(a) when matters of law and fact remain undetermined by Tribunal.

LEGISLATION CITED: Consumer Trader and Tenancy Tribunal Act 2001
s 21, s 65, s 67, s 67(3), s 67(3)(a)
Home Building Act 1989 s 3, s 12, s 18C,
s 29, s 29(1), s 29(1)(a), s 31, s 31(3),
s 48K, s 90,

CASES CITED: Azzopardi v Tasman UEB Industries Ltd (1985) NSWLR 139
Gunn & Anor v Steain & Ors [2003] NSWSC 1076
Kalokerinos & Anor v HIA Insurance Services P/L & Anor [2004] NSWCA 312
Smith v Collings Homes Pty Ltd [2004] NSWCA 75

PARTIES: Michael Sorbello & Another v Elizabeth Whan & 2 Ors
Troy Donnelly & Another v Elizabeth Whan & 2 Ors

FILE NUMBER(S): SC 30117 of 2006 ; 30107 of 2006

COUNSEL: Mr Bailey SC and Mr A Crossland - Applicant
Mr T Lynch - Respondent

LOWER COURT JURISDICTION: Consumer Trader and Tenancy Tribunal of NSW

LOWER COURT FILE NUMBER(S): HB 04/21783; HB 04/21795

LOWER COURT JUDICIAL OFFICER : A Borsody

LOWER COURT DATE OF DECISION: 2 August 2006

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

PRICE J

29 August 2007
30107 of 2006 Michael Sorbello & Another v

Elizabeth Whan & 2 Ors

30117 of 2006 Troy Donnelly & Another v

Elizabeth Whan & 2 Ors

JUDGMENT

1 His Honour: Separate applications were brought by Troy Wayne Donnelly and Belinda Bentvelzen (Donnelly and Bentvelzen) and Michael Sorbello and Sarah Sorbello (the Sorbellos) in the Consumer, Trader and Tenancy Tribunal against Elizabeth Whan and Gary Whan. The applications arose out of the purchase by Donnelly and Bentvelzen and the Sorbellos of adjacent properties from Mrs Whan. The applicants contended before the Tribunal that Mrs Whan was liable to arrange for the repair of pump-out systems on each of the properties. The applications were heard together by a single Member of the Tribunal. On 2 August 2006, the Tribunal Member published Reasons for Decision dismissing the applications.

2 By Further Amended…

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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Details

Case: [2007] NSWSC 951
Decision Date: 29 August 2007

CaseChat Overview and Summary

Sorbello & Donnelly appealed against a decision of the Consumer, Trader and Tenancy Tribunal (the Tribunal) that dismissed their claim against Whan. The Tribunal had found that Whan, as an owner-builder, was not liable for defects in the construction of a house that was built on land owned by Sorbello & Donnelly. The dispute arose from the construction of a house where Whan, as the builder, claimed to be an owner-builder and thus not subject to certain statutory obligations under the Home Building Act 1989. Sorbello & Donnelly argued that Whan was not an owner-builder and, as a consequence, was liable for the defects in the construction.

The primary legal issues before the court were whether the Tribunal erred in concluding that an application for an owner-builder permit must have been rejected for Whan to be found not to be an owner-builder, and whether the Tribunal had jurisdiction to make the orders it did. Additionally, the court examined whether Sorbello & Donnelly were denied procedural fairness and whether the Tribunal's decision on the matter of law was correct. The court also considered the scope of its powers under section 67 of the Consumer, Trader and Tenancy Tribunal Act when matters of law and fact remained undetermined by the Tribunal.

The court found that the primary facts did not necessarily lead to the conclusion that an application for an owner-builder permit must have been rejected for Whan to be found not to be an owner-builder. The court clarified that there is no requirement that an individual must have an owner-builder permit to be considered an owner-builder. Additionally, the court held that the Tribunal had jurisdiction to make the orders it did and that procedural fairness was not denied. The court further determined that the Tribunal's decision on the matter of law was correct and that the appeal was limited to matters of law and fact that remained undetermined by the Tribunal. Consequently, the court dismissed the appeal.

No further orders were made by the court. The decision of the Tribunal was upheld, and Whan was not found to be liable for the defects in the construction of the house.

Orders