Strangas and Son Building Contractors Pty Ltd v Lim - [2012] NSWSC 1320

Supreme Court

New South Wales

Medium Neutral Citation: Strangas & Son Building Contractors Pty Ltd v Lim [2012] NSWSC 1320
Hearing dates: 24 October 2012
Decision date: 24 October 2012
Jurisdiction: Common Law
Before: Davies J
Decision:
1. The Summons and the Amended Summons are dismissed.
2. The Plaintiff is to pay the First and Second Defendants' costs of the proceedings.

Catchwords: ADMINISTRATIVE LAW - order in the nature of certiorari - judgment of Consumer, Trader and Tenancy Tribunal - privative provision preventing order unless error going to jurisdiction or denial of procedural fairness - allegation of error of law by reason of no evidence finding - whether error of law goes to jurisdiction
PROCEDURE - application to dismiss summons summarily - no error of law demonstrated - no jurisdictional error - summons dismissed
Legislation Cited: Administrative Decisions (Judicial Review) Act 1977 (Cth)
Consumer, Trader and Tenancy Tribunal Act 2001
Supreme Court Act 1970
Uniform Civil Procedure Rules
Cases Cited: Australian Broadcasting Corporation v Bond (1990) 170 CLR 321
Azzopardi v Tasman UEB Industries (1985) 4 NSWLR 139
Ballantine v Workcover [2007] NSWCA 239
Commissioner of Railways v General Steel Industries (1964) 112 CLR 125
Minister for Immigration, Local Government and Ethnic Affairs v Pashmforoosh (Unreported, Federal Court, 28 June 1989)
RL & D Investments Pty Ltd v Bisby (2002) 37 MVR 479; [2002] NSWSC 1082
Strangas & Son Building Contractors Pty Ltd v Lim [2012] NSWDC 72
US Manufacturing Co Pty Ltd v ABB Service Pty Ltd [2008] NSWCSC 705
Category: Principal judgment
Parties: Strangas & Son Building Contractors Pty Ltd (Plaintiff)
Gay Lim (First Defendant)
Kuong Ming Alex Ting (Second Defendant)
The Consumer Trader and Tenancy Tribunal (Third Defendant)
Representation: Counsel:
D P O'Connor (Plaintiff)
R Jefferis (First & Second Defendants)
No appearance (Third Defendant)
Solicitors:
Brischetto & Ford Solicitors (Plaintiff)
Gay Lim (First & Second Defendants)
Crown Solicitor (Third Defendant)

File Number(s): 2012/282157

Judgment

These proceedings commenced by the filing of a Summons on 10 September 2012. That Summons was replaced by an Amended Summons filed on 21 September 2012.

Prayer one in the Amended Summons seeks an order in the nature of a writ of certiorari quashing the orders made in the Tribunal below by Member Buckley on 21 September 2011. The Tribunal below was the Consumer Trader and Tenancy Tribunal. There are ancillary orders if an order for certiorari is made.

Two other substantive prayers are sought. The first is a declaration that the Defendants would be unjustly enriched if the Plaintiff was required to pay the balance of the judgment debt registered in the Local Court in certain proceedings in the amount of $21,904, and an alternative prayer that the judgment of the CTTT delivered 21 September be varied by reducing the amount of the judgment to $67,965.

Contrary to r 6.12A UCPR neither the Summons nor the Amended Summons contained a statement setting out the grounds relied on in support of the claim, nor any error of law in the decision of…

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: [2012] NSWSC 1320
Decision Date: 24 October 2012

CaseChat Overview and Summary

In the matter of Strangas and Son Building Contractors Pty Ltd v Lim, the respondent, Strangas, sought an order of certiorari to quash the judgment of the Consumer, Trader and Tenancy Tribunal. The dispute arose from a decision made by the tribunal that favoured the appellant, Mr. Lim, regarding a contractual dispute. The matter was brought before the court to determine the validity of a privative clause in the relevant legislation, which restricted the scope of judicial review unless there was a jurisdictional error or a denial of procedural fairness.

The primary legal issue before the court was whether an error of law constituted a jurisdictional error under the privative clause. Specifically, the court had to consider whether the tribunal's finding of no evidence on a particular point amounted to an error of law that went to the tribunal's jurisdiction. The court needed to decide if such an error warranted the issuance of a certiorari order to quash the tribunal's decision.

The court held that the error of law identified by Strangas did not equate to a jurisdictional error or a denial of procedural fairness. In reaching its decision, the court examined the legislative framework and the principles of administrative law. It found that the tribunal's decision, while containing an error of law, did not affect the tribunal's jurisdiction or procedural fairness. Consequently, the court concluded that the privative clause precluded the issuance of a certiorari order, and the summons was dismissed. The court's reasoning was grounded in the statutory interpretation and the established jurisprudence concerning the scope of judicial review in administrative law matters.

Orders