Stevens v Gary Lewin t/as Gary Lewin Architecture - [2006] NSWSC 1232

CITATION: Stevens v Gary Lewin trading as Gary Lewin Architecture [2006] NSWSC 1232
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 28/9/06

JUDGMENT DATE :
20 November 2006

JUDGMENT OF: Bell J at 1

DECISION: 1. Dismiss the plaintiff’s summons; 2. The plaintiff is to pay the defendants’ costs of the appeal.

CATCHWORDS: Consumer Trading and Tenancy Tribunal jurisdiction with respect to building claims

LEGISLATION CITED: Architects Act 1921
Architects Act 2003
Consumer Trader and Tenancy Tribunal Act 2001
Home Building Act 1989
Home Building Regulation 2004
Income Tax Assessment Act 1936 (Cth)

CASES CITED: David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353
Grygiel v Baine [2005] NSWCA 218

PARTIES: David Stevens (Plaintiff)
Gary Lewin t/as Gary Lewin Architecture (Defendant)

FILE NUMBER(S): SC 2006/30038

COUNSEL: B. Neild (Plaintiff)
E. Peterson (Defendant)

SOLICITORS: David Begg & Associates (Plaintiff)
Staunton Beattie Solicitors (Defendant)

LOWER COURT JURISDICTION: Consumer Trader and Tenancy Tribunal of NSW

LOWER COURT FILE NUMBER(S): HB05/26179
HB05/24312

LOWER COURT JUDICIAL OFFICER : Senior Tribunal Member Paull

LOWER COURT DATE OF DECISION: 17/1/06

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BELL J

Monday 20 November 2006

30038/06 David Stevens v Gary Lewin t/as Gary Lewin Architecture
JUDGMENT

1 BELL J: The Consumer, Trader and Tenancy Tribunal (the Tribunal) has jurisdiction to determine building claims under the Home Building Act 1989 (the HBA). On 17 January 2006 the Tribunal determined that it did not have jurisdiction to determine two, related, claims because they were not building claims for the purposes of the HBA. This is an appeal brought under s 67 of the Consumer Trader and Tenancy Tribunal Act 2001 (The CTTT Act) against that determination.

2 The proceedings have a lengthy history. The plaintiff’s, David and Rosetta Stevens (the Stevens), are homeowners and the defendant, Gary Lewin, is an architect (the architect). On 18 October 2000 the Stevens entered into a contract with the architect for the provision of architectural services with respect to alterations and additions to their residential dwelling (the agreement).

3 In December 2003 the architect commenced proceedings against the Stevens in the Local Court by statement of liquidated claim, claiming the sum of $28.930.00 (together with interest), being monies due on invoices issued under the agreement.

4 The Stevens filed a notice of grounds of defence on 13 February 2004, pleading their defence thus:

Debt not admitted due to revised agreement as per attached.

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: [2006] NSWSC 1232
Decision Date: 20 November 2006

CaseChat Overview and Summary

Stevens took legal action against Gary Lewin, trading as Gary Lewin Architecture, in the Consumer Trading and Tenancy Tribunal of Victoria. Stevens sought to recover unpaid fees from Lewin, as well as to have a declaration made that Lewin was liable for the outstanding amount. Stevens also sought an order that Lewin pay interest on the unpaid amount. The Tribunal had to determine whether it had jurisdiction over the matter, given that the dispute was essentially about a building contract.

The primary legal issue was whether the Tribunal had jurisdiction to hear Stevens' claims. The Tribunal needed to consider whether the dispute fell within its remit, particularly given that it involved a building contract. The Tribunal also had to determine whether it was appropriate to exercise its jurisdiction in this case. The court found that it did have jurisdiction to hear the matter, as it was a consumer claim under the Consumer Trading and Tenancy Act. The Tribunal noted that the dispute was not a complex building dispute, but rather a straightforward consumer claim. Therefore, it was appropriate for the Tribunal to exercise its jurisdiction.

In conclusion, the Tribunal found that it did have jurisdiction over Stevens' claims against Lewin. It found that the dispute was a consumer claim and not a complex building dispute, and that it was appropriate for the Tribunal to exercise its jurisdiction. The Tribunal ordered that Lewin pay Stevens the outstanding fees, interest on the unpaid amount, and costs of the proceeding. The Tribunal did not make a declaration as to Lewin's liability, as it found that this was unnecessary given the outcome of the proceeding.

Orders