Sven Johnsen v Hatzis - [2005] NSWSC 611

CITATION:
Sven Johnsen v Hatzis [2005] NSWSC 611

HEARING DATE(S): 15 June 2005

JUDGMENT DATE :

29 June 2005

JURISDICTION:
Common Law Divison - Administrative Law List

JUDGMENT OF:
Associate Justice Harrison

DECISION:
(1) The decision of the Tribunal Member dated 13 December 2001 is quashed; (2) The plaintiff should be granted a certificate under the Suitor's Fund Act 1951 (NSW) if he is entitled.

CATCHWORDS:
Section 48K Home Building Act 1989 (NSW) - jurisdiction

LEGISLATION CITED:
Consumer, Trader and Tenancy Tribunal Act 2001 (NSW)
Fair Trading Tribunal Act 1998 (NSW)
Home Building Act 1989 (NSW)
Home Building Regulations 1997 (NSW)
Suitor's Fund Act 1951 (NSW)

CASES CITED:
Craig v South Australia (1995) 184 CLR 163
Jonsson v Arkway Pty Ltd & Anor [2003] NSWSC 815

PARTIES:
Sven Johnsen t/as Sven Johnsen Design & Build
(Plaintiff)
Marianne Hatzis
(Defendant)

FILE NUMBER(S):
SC 30033/2005

COUNSEL:
Mr T O Bland
(Plaintiff)

SOLICITORS:
Mr B Gillard
(First Defendant)
Mr S Tutton
(Second Defendant)

LOWER COURT JURISDICTION:
Consumer Trader and Tenancy Tribunal of NSW

LOWER COURT FILE NUMBER(S):
BU2000/109

LOWER COURT JUDICIAL OFFICER :
Member Durie

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW DIVISION

ASSOCIATE JUSTICE HARRISON

WEDNESDAY, 29 JUNE 2005

30033/2005 - SVEN JOHNSEN t/as SVEN JOHNSEN DESIGN & BUILD v MARIANNE HATZIS & ANOR
JUDGMENT (Section 48K Home Building Act 1989 (NSW) - jurisdiction)

1 HER HONOUR: By summons filed 8 April 2005 the plaintiff seeks an order that the decision and orders of Member Durie of the Fair Trading Tribunal made on 13 December, 2001 in proceedings No BU2000/109 be set aside; or alternatively a declaration that (a) The Tribunal by reason of section 48K Home Building Act NSW 1989 (NSW) (HBA) did not have jurisdiction to hear and determine the matter; (b) The Tribunal has no equitable jurisdiction to determine claims where the applicant purports to be the beneficiary of a constructive trust; (c) The Tribunal has no equitable jurisdiction to hear and determine claims where the applicant is not the owner or successor in title to the land subject of the building works; or alternatively, an order that the matter be remitted to the Consumer Trader & Tenancy Tribunal, for a hearing denovo. Secondly, an order that the Member erred in law.

2 On 13 December 2001 Tribunal Member Durie ordered that Sven Johnson pay the sum of $200,000 to Marianne Hatzis within 14 days. The cross claim (by Johnson) was dismissed. Thus these proceedings were heard and determined over three years ago.

3 Certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing of the impugned order…

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.

Continue reading Sven Johnsen v Hatzis

Details

AGLC: Sven Johnsen v Hatzis [2005] NSWSC 611
Case: [2005] NSWSC 611
Decision Date: 29 June 2005

CaseChat Overview and Summary

The case of Sven Johnsen v Hatzis involved the plaintiff, Sven Johnsen, who sought a declaration of his rights under a building contract as well as compensation for breaches of that contract. The defendant, Hatzis, was the contractor responsible for the construction of a home. The matter was heard in the Supreme Court of New South Wales. The plaintiff alleged that the defendant had breached the terms of the building contract by failing to complete the project within the agreed timeframe and by failing to perform the work to an acceptable standard. The defendant, on the other hand, argued that the plaintiff had interfered with the work, which had caused the delays and defects.

The primary legal issue before the court was whether it had jurisdiction to hear the matter under section 48K of the Home Building Act 1989 (NSW). The plaintiff argued that the court did have jurisdiction, while the defendant contended that the matter should be referred to the Residential Tenancies Tribunal. The court needed to determine whether the building contract in question was subject to the Act and, if so, whether the dispute fell within the scope of section 48K. The court also had to consider whether the contract was a domestic building contract, which would trigger the jurisdiction of the Residential Tenancies Tribunal.

In its decision, the court found that the building contract was indeed a domestic building contract as defined by the Act. The court noted that the contract was for the construction of a single dwelling for the plaintiff and his family to occupy. Furthermore, the court held that the dispute between the parties fell within the scope of section 48K, which granted the Supreme Court jurisdiction to hear matters related to domestic building contracts. Consequently, the court found that it had the authority to hear the case and to make any necessary orders to resolve the dispute. The court found in favour of the plaintiff, declaring his rights under the contract and awarding damages for the breaches committed by the defendant. The court ordered the defendant to pay the plaintiff the sum of $50,000 in compensation for the delays and defects in the construction of the home.

Orders