The Owners v Fair Trading - [2007] NSWSC 1235

No judgment structure available for this case.

CITATION: The Owners v Fair Trading [2007] NSWSC 1235
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 17/07/2007

JUDGMENT DATE :
2 November 2007

JURISDICTION: Equity Division

JUDGMENT OF: Associate Justice Macready at 1

CATCHWORDS: Insurance: Other indemnity insurances. - Procedures: Supreme Court procedure. - Whether an appeal from a refusal of consent to an extension of time under the former insurance scheme under the Home Building Act lies to the Supreme Court. - Held that it does when it concerns an amount over $500,000.

CASES CITED: Defence Housing Authority v Building Insurer's Guarantee Corporation (2005) 189 FLR 197.

PARTIES: The Owners - Strata Plan No 58068 v Fair Trading Administration Corporation

FILE NUMBER(S): SC 55028/2007

COUNSEL: Mr I Jackman SC with Mr J Young for plaintiff
Mr T Lynch for defendant

SOLICITORS: Andreones Pty Limited for plaintiff

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
TECHNOLOGY & CONSTRUCTION LIST

Associate Justice Macready

Friday 2 November 2007

55028/07 The Owners Strata Plan No 58068 v Fair Trading Administration Corporation

JUDGMENT

1 His Honour: This is the hearing of a notice of motion filed on 21 May 2007 in which the plaintiff seeks an order that there be separate determination of certain questions. At the conclusion of the hearing I made an order for the determination of the separate questions. I also heard argument on the separate questions which have been referred to me for determination by a Judge of the Court.

2 The separate questions were as follows:

Home Building Act 1989

2. If the answer to question 1. is “yes”, does the Court have jurisdiction to decide whether and to what extent the defendant should have extended the 6 month period in sub-clause 7(1)(b) of the Comprehensive Insurance Scheme?

3. Assuming the defendant is found not to have properly exercised its discretion under sub-clause 7(2) of the Comprehensive Insurance Scheme, is this Court’s jurisdiction limited to remitting to the defendant the decision whether to extend the 6 month period in sub-clause 7(1)(b) of the Comprehensive Insurance Scheme?

Consumer, Trader and Tenancy Tribunal Act 2001

3 The plaintiff is the registered proprietor of the common property of a multi-storey strata title residential tower building situated in Forbes Street Darlinghurst and known as the Horizon Apartments. The plaintiff alleges that the building contains many defects causing losses which, although they are yet to be quantified, are likely to be in the order of several million dollars. The plaintiff alleges that the builder failed in his duty as a builder thus causing the defects.

4 The Fair Trading Administration Corporation, the defendant, is the body constituted to administer at the present time the comprehensive insurance scheme which was the statutory insurance scheme insuring residential building works carried out prior to 1997. According to the plaintiff it first became aware of matters that could give rise to losses which would be claimable under the scheme about May 2002. It gave notice of the matters which could give rise to the losses on 22 September 2003 which was outside the six months allowed in the legislation.

5 In June a claim was lodged with the defendant under the scheme and the defendant refused the claim on 19 March 2007. A matter to be determined under clause 7 (2) of the scheme was whether the defendant should extend the time limit in subclause 7(1) of the scheme and this was determined adversely to the plaintiff by the defendant.

6 The plaintiff brings these proceedings pursuant to various statutory provisions seeking to have a review by this Court of the merits of its application. It does not seek to set aside the decision by way of judicial review, which if successful would normally lead to referral of the matter back to the defendant for further consideration. The purpose of the separate questions is to enable the Court to determine whether in fact there is a power to have a review on the merits as sought by the plaintiff.

7 In the event that the plaintiff is unsuccessful on the determination of the separate questions the parties are agreed that the proceedings should be transferred to the Consumer Trade and Tenancy Tribunal pursuant to S23 (2) of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW).

8 Under the Building Services Corporation Act 1989 (which was renamed the Home Building Act in 1996) prior to 1 May 1997 there was a scheme which was prescribed in Part 6 of the Regulations made under that Act in 1990. It was a statutory scheme which did not involve insurance in the ordinary concept of a separate contract of insurance with a private insurer. Rather it provided for a mandatory indemnity scheme in which recipients of residential building work (who were defined as beneficiaries under the scheme) could be compensated by the Building Services Corporation (BSC) when builders licensed under the Act produced defective work or acted in other ways that were in breach of the Act. The BSC was a government sponsored entity, presumably funded out of licensing fees paid by builders, which in effect acted as a de facto insurer for all builders licensed under the Act. The BSC in a sense acted like private insurers today when processing claims and deciding whether they should provide an indemnity. However, there was no contract of insurance.

9 The amendments made by the Building Services Corporation Legislation Amendment Act 1996 which applied from 1 May 1997 changed the insurance provisions to ones where the obligation was on a builder to obtain insurance from an insurance company in accordance with certain prescribed form of policy wording. However, the requirement for builders to obtain their own insurance was only from 1997 and clauses 37 and 39 of schedule 5 of the 1996 Act preserved the old scheme in respect of work done prior to the amendments which is the situation in the present case. The defendant was the specially created corporation incorporated to take over the BSC and handle these claims.

10 Part IV of the Building Services Corporation Act before its amendment in 1996 provided for appeals to the Commercial Tribunal by a claimant under the scheme who was aggrieved by a decision of the BSC. See s 85 (d) of the Act. Under s 87 of the Act such appeals were a hearing de novo. There was then no limit as to quantum on the jurisdiction of the Commercial Tribunal and no statutory conferral of any appellate review jurisdiction in any court or other tribunal. Naturally this Court retained its jurisdiction in respect of judicial review. The amending Act of 1996 abolished the right of appeal under s 85(d) as it was no longer needed. Under the new scheme appeals from insurance decisions were dealt with in a new Part 5 Division 2.

11 In 1998 the Commercial Tribunal was abolished and ultimately a right of appeal in respect of decisions under the old scheme was conferred on the Fair Trading Tribunal. That jurisdiction was expressed as being that formerly possessed by the Commercial Tribunal and was unlimited as to quantum. No other right of appeal to any other forum was conferred by the Fair Trading Tribunal Act 1998. The section which conferred jurisdiction was in the following form:

Commercial Tribunal Act 1984

Home Building Act 1989

12 The reference to clause 37 effectively restored to the Fair Trading Tribunal the jurisdiction of the Commercial Tribunal which existed prior to the 1996 amendments in respect of decisions subsequently made in respect of claims under BSC Insurance for work done under the old scheme.

13 In due course the Fair Trading Tribunal was abolished and a right of appeal in respect of decisions under the scheme was thereupon conferred on the Consumer Trading and Tenancy Tribunal (CITT). The parties are at issue as to the proper construction of the various provisions concerning the jurisdiction of that body to determine matters arising under the old scheme. The plaintiff contends that on the proper construction of the various provisions this Court has jurisdiction to deal with a hearing on the merits in respect of the decision in question. The defendant for its part advocates a construction that all present rights of appeal that have been created are statutory ones and in the absence of a statutory right to an appeal to a court for a hearing on the merits the court is limited to its jurisdiction in respect of judicial review which of course the plaintiff is not pressing in these proceedings. It concedes that the CTTT has jurisdiction in respect of an appeal on the merits.

The submissions in respect of the proper construction of the relevant Acts

14 In the period before the introduction of the CTTT there were amendments to the principal Act concerning the method of dealing with building disputes. Under the Home Building Legislation Amendment Act 2001 a new Part 3A was inserted which dealt with ”Resolving building disputes and claims”. The part assumed the continued existence of the Fair Trading Tribunal which since 1998 had a jurisdiction in this area.

15 The plaintiff submits that these proceedings are a “building claim” as defined by s.48A (1) of the Home Building Act 1989 (NSW). The definition is in these terms:

“

building claim

(a) the payment of a specified sum of money,

building claim

Consumer Claims Act 1998

16 It is submitted that the claim, being for the payment of a specified sum of money for the supply of building goods or services under a contract with Grocon Pty Ltd (Grocon), amounts to a building claim. It is apparent that the reference to an appeal against a decision by an insurer in 48A (2) (a) is a reference to the new scheme not the old scheme. Relying on the preliminary words of subsection (2) as not limiting the generality of subsection (1) the plaintiffs submit that their application is still a building claim.

17 The plaintiff contends that this Court has jurisdiction to decide on the matter of the extension of the six-month period in sub-clause 7(1)(b) of the old Comprehensive Insurance Scheme on the basis that the claim exceeds $500,000. Reference was made to ss K(1) and 48M of the Act in support of the submission that the claim is a full merits review hearing in this Court. The sections are as follows:

“48K Jurisdiction of Tribunal in relation to building claims (1) The Tribunal has jurisdiction to hear and determine any building claim brought before it in accordance with this Part in which the amount claimed does not exceed $500,000 (or any other higher or lower figure prescribed by the regulations).”

18 The expression insurance claim is not defined in the Act and thus it is submitted by the plaintiff that it would be claims under the old and new system. Of importance the section does not impose any limit on the nature of the appeal. It seems clear that as a result of the legislative history I have earlier referred to the Tribunal still had a full merits review in respect of claims under the old scheme and it suggests this would incline one to the view that for amounts over $500,000 the legislature intended the Court to have such a power of review. As Mr Jackman QC submitted, to interpret it otherwise would create an anomaly as the greater the monetary value of an applicant’s claim the less rights they would actually enjoy.

19 Of importance when the change was made from the Fair Trading Tribunal to the CTTT that jurisdiction for a full merits review was again carefully preserved by clause 47 of the Consumer Trader and Tenancy Tribunal Regulations 2002 which was in these terms:

Fair Trading Tribunal Act 1998

Home Building Act 1989

20 The departure between the plaintiff and defendant is the link between the jurisdiction conferred by clause 47 and the jurisdiction limits imposed by ss 48K and 48M. The defendant’s submission is that the jurisdiction under clause 47 is separate and remains with the CTTT because ss 48K and 48M do not apply to the plaintiff’s claim. It was the defendant’s submission that the CTTT has unlimited jurisdiction under clause 47. That jurisdiction was founded on the continued existence under the transitional provisions of s 85(d) and s 87 of the Act which created the right of appeal in respect of the old statutory scheme and provided for a merits review unlimited in amount.

21 The defendant's submissions on the correct construction of relevant legislation were threefold. First that s 48A in defining a building claim does not give rise to a statutory cause of action. It assumes that a cause of action exists and uses that for the conferring of jurisdiction on either of the CTTT or a Court. That this is the purpose is clear from the use of the words “ to be heard by a court of competent jurisdiction” in s 48M. The defendant points out that the old scheme does not create a contract of insurance as the scheme applied by operation of, or because of, the status of the person doing the residential building work.

22 It was submitted that there is thus no statutory cause of action arising out of the scheme and that all it does is create a statutory right to an indemnity from the Building Services Corporation. There may be some argument as to whether that statutory right to indemnity creates a cause of action but one matter that is clear is that there is a condition precedent to any right which is the giving of due notice within the time limit prescribed under 7.1 of the statutory scheme. That time can be extended under clause 7.2 but that is simply a decision of the statutory corporation administering the scheme. Any statutory cause of action that might be given in respect of the right of indemnity will not apply unless that decision is set aside.

23 The purpose of the present proceedings is to challenge that decision and claim indemnity in terms of the scheme. Absent of any statutory right of appeal from the decision in 7.2 there would only be an ability to challenge it in Court by way of judicial review which of course is not pressed in these proceedings. As the purpose of the proceedings is the merit challenge it is submitted that there is thus no cause of action in respect of the challenge to the decision and therefore there is nothing to which the terms of the definition in section 48A would apply.

24 The second matter advanced by the defendant was that, as a matter of the language, the definition of a building claim does not include a claim under the scheme. A building claim in the definition is expressed to be a claim for the payment of a specified sum of money that arises in certain circumstances. It is submitted that the present proceedings are not a claim in respect of a sum of money but a claim for an indemnity under the scheme and more particularly to challenge what is said to be the wrongful refusal of an extension of time claim which is a condition precedent to that entitlement.

25 The third basis on which it is submitted that the present matter does not fall within the definition of a building claim in s 48A is that the old statutory scheme was closed in 1996 and the present legislation has been drafted in a form which only encompasses appeals against insurance decisions where they concern the new regime of insurance contracts with private insurers. In this regard the defendant points to the continued operation of the provisions for appeal under the old scheme in respect of matters which occurred prior to its closure. It also points to the words in subsection (2) of the definition of a building claim which gives the flavour to the meaning of an “insurance claim” referred to in s 48M of the Act.

26 In support of its submission the defendant pointed to the fact that the amendments made by the 2002 regulations were after the amendments inserting the present provisions in the Home Building Act 1989.

27 The defendant’s construction of the sections leads to a situation that in respect of a dispute about insurance under the new system there is only a limited right of appeal to the CTTT when the amount is under $500,000 and above that it goes to a Court. In contrast where there is an appeal in respect of an insurance decision under the old system that body has a jurisdiction unlimited in amount. One could be forgiven for thinking that by limiting the jurisdiction of the CTTT to $500,000 and providing that above that sum the matter shall be determined by a court of competent jurisdiction, the legislature was intending the more serious claims, in terms of money value, should be dealt with by a Court rather than the CTTT.

Discussion of the submissions

28 It is useful to consider the situation of the Fair Trading Tribunal at the time the relevant provisions were introduced in 2001. In paragraph 11 above I have set out s 4A that dealt with appeals concerning BSC insurance decisions. Clauses 37 and 39 in schedule 4 to the Home Building Act 1989 are in these terms:

BSC insurance

29 The preservation of part 5 in clause 37 preserved the right of appeal conferred by s 85(d) and the nature of that appeal which was pursuant to s87 a rehearing. Thus the statutory right to appeal under the old scheme still existed and jurisdiction to determine that appeal was by amendments made to the Fair Trading Tribunal Act 1998 in its transitional provisions clause 4A vested in the Fair Trading Tribunal.

30 The Tribunal also had a jurisdiction in relation to insurance disputes under the new insurance scheme pursuant to the predecessors of the sections that were adopted in the 2001 amendments. These predecessors were contained substantially in s 84 and Part 5 prior to their repeal in the 2001 amendments which replaced them with the new provisions with which we are now concerned. The definition in s 84 used the same definition of building claim which picks up an appeal against the decision of an insurer under the new scheme. In the earlier sections there does not appear to be any limitation on that jurisdiction in terms of monetary amount.

31 One then comes to the amendments that were introduced in 2001 which have to be considered in the light of the two existing rights of appeal to the Tribunal neither of which had a monetary limit. One of them is the preserved right in respect of the old scheme and the other is the right to appeal insurance decisions under the new scheme.

32 In the new provisions the relevant monetary limitation is introduced by the new section 48M. It is as follows:

33 On its face the words “an insurance claim” could clearly comprehend both types of insurance claim but the section is also limited to a building claim (a defined term) that relates to the refusal of an insurance claim.

34 Any dispute in relation to a contract of insurance under the new scheme is justiciable in a court of law because it would be based upon contractual or other ordinary insurance principles. There is thus no need to provide a right of appeal but in s 48K jurisdiction to hear such a dispute is given to the Tribunal. The section is:

“ 48K Jurisdiction of Tribunal in relation to building claims (1) The Tribunal has jurisdiction to hear and determine any building claim brought before it in accordance with this Part in which the amount claimed does not exceed $500,000 (or any other higher or lower figure prescribed by the regulations).”

35 Because of the inclusive definition of building claim in subsection (2) it certainly includes an insurance dispute under the new provisions. There is no conferral of jurisdiction in respect of such disputes where the claim does exceed $500,000. Such claims would continue to be justiciable in the courts. What then is the purpose of 48M? The answer may be that it is directed to the other type of claim, namely, under the old scheme which the tribunal already had jurisdiction to consider.

36 It is hard to see what is the meaning of the word ”despite” in s 48M but the section could have effect on an insurance claim under the old scheme by remitting that jurisdiction which the Tribunal had pursuant to the appeal provisions to the Supreme Court. This would accommodate the evident purpose of leaving not only ordinary building disputes but also building disputes involving claims on insurance to the Supreme Court or District Court once the amount in question exceeded $500,000.

37 Such an approach involves interpreting s 48M in a way that does not limit its reference to “building claim” as only including the inclusive definition in subsection (2) of the definition. The use of the expression “relates to” supports such an approach. Alternatively, a construction of the definition which includes a claim under the old scheme would achieve the same result.

38 I return to the definition of a building claim. I accept the defendant’s submission that s48A, in defining a building claim, does not give rise to a statutory cause of action but assumes that a cause of action exists. However, I do not accept that there is no statutory cause of action arising out of the scheme. Clause 5 of the scheme provides that the corporation will indemnify the beneficiary in respect of certain defined losses. It creates a right of indemnity.

39 Such a submission did not find favour with Hidden J in Defence Housing Authority v Building Insurer’s Guarantee Corporation (2005) 189 FLR 197. In that case the defendant was a government corporation specially founded to deal with the collapse of FAI Insurance Company Ltd and created by the insertion of Part 6A into the Home Building Act. Under s 103I the defendant would indemnify builders who had previously maintained a contract of insurance with FAI. The plaintiff in that case had engaged a builder who had completed defective building work and since that builder had been insured by FAI sought to claim an indemnity form the defendant of over $600,000. When the defendant rejected that claim, the plaintiff sought merits review in the Supreme Court of New South Wales under s 48M of the Act. The defendant opposed this application, inter alia, on the grounds that an indemnity claim was made pursuant to s 103I - not against a decision of an insurer under a contract of insurance- and thus not a building claim within the definition of s 48A. It was submitted that the part does not otherwise confer on a claimant for indemnity a cause of action in the courts and as the indemnity was not a building claim under s 48A, then s 48K would have no application to this case, the jurisdiction of the CTTT being set by s 103ZA of the Act. Section 103ZA arguably gave the CTTT a jurisdiction unlimited by quantum. Hidden J rejected this argument ruling:

“Such a legislative scheme might well be seen as conducive to the orderly resolution of claims for indemnity, placing the decision in the hands of an administrative body, subject to appeal to a specialist tribunal invested with wide powers to achieve justice in the individual case. Nevertheless, I am persuaded by the argument of Mr Jackman SC, who appeared with Mr Tyson for the plaintiff, that such an interpretation of the legislation flies in the face of its plain words. As I have said, s103ZA picks up the extended definition of “building claim” in s 48A(2)(a). Section 48K imposes a monetary limit upon the jurisdiction of the Tribunal and, in respect of “a building claim that relates to the refusal of an insurance claim” which exceeds that limit, s 48M expressly preserves the jurisdiction of the ordinary courts.

As Mr Lynch observed, Part 6A does not “establish the defendant as a successor to or assign of the insolvent insurer, or otherwise make the defendant a party to an insolvent insurer’s HBA policies”; and it may well be, as Mr Lynch argued, that the language of ss 48K and 48M is more apt to express the respective rights of a claimant under a policy and the insurer. Nevertheless, if the legislature intended that a claimant for indemnity under Part 6A should have recourse to the Tribunal without any monetary limit, it could have said so. Equally, if the legislature intended that a claimant under Part 6A could not have recourse to the ordinary courts in the manner envisaged by s 48M, it could have said so. It has done neither.

While I was not taken to any cases on statutory interpretation, I am mindful of the trend of modern authority towards a purposive approach to that question. However, whatever might be perceived to be the policy behind the machinery established by Part 6A the terms of the relevant provisions do not admit of the interpretation urged by Mr Lynch. I am satisfied that an appeal to the Tribunal through the avenue of s103ZA is subject to the monetary limit set by s 48K, which at present is $500,000. The plaintiff’s claim exceeds $600,000 and, accordingly, is outside the jurisdiction of the Tribunal.

Accordingly, consistently with s 48M, the plaintiff is entitled to pursue such general law remedies as are available to it in this Court. Mr Jackman submitted that that would have been so even if the plaintiff’s claim were within the jurisdiction of the Tribunal by virtue of s48K. He argued that the legislation should not be construed as taking away the jurisdiction of this Court, relying upon the judgment of Giles J in Dahlia Mining Co Ltd v Collector of Customs (1989) 90 ALR 193 at 198 and the cases to which his Honour there referred. There is force in this argument although I need not express a concluded view about it. It is sufficient to say that the amount of the plaintiff’s claim is such that the avenue of appeal to the Tribunal is not available to it.
Accordingly, subject to a further jurisdictional question to which I shall turn in a moment, it is open to the plaintiff to pursue the merits claims.”

40 Necessarily involved in his decision is a rejection of the argument that the claim on an indemnity does not give rise to a cause of action.

41 As I have indicated, the question is whether the present claim challenges as a necessary part of that claim, the refusal of the extension of time which “arises from a supply of building goods or services”. The words “arises from” indicates a commencing point and is of extreme generality. Some dictionary meanings of the word “arise” include:

42 This wide view of the word would, in my view, encompass the present claim as its origin is particular residential building work. The words “arises from” concentrates on the origin of the claim and the definition does not characterise the connection in some other way such as, for example, the substantial purpose. There only has to be a nexus between the claim and its origin in the particular type of building work.

43 There is a need for the claim to be for a monetary amount. In terms the proceedings seek indemnity under clause 5 of the scheme. The indemnity there given is for a series of defined losses which because of their description are monetary in nature.

44 For these reasons it seems to me that the claim for indemnity under the old scheme does fall within the definition of building claim in the Act. In this way the self-evident purpose of the amendments can be achieved.

45 The fact that after the 2001 amendments there was a conferral of jurisdiction on the CTTT by clause 47 does not affect this approach. That clause in terms confers the jurisdiction that existed at the time of the insertion of clause 4A in the Fair Trading Tribunal Act prior to the 2001 amendments. The word jurisdiction is ambiguous as it can comprehend either the giving of a substantive right of appeal, a determination of who was to determine such an appeal and/or any limits on the jurisdiction granted. A construction of it being for the purpose of preserving the substantive right of appeal, which the CTTT could exercise in cases under $500,000, would be preferable in order to accommodate the purpose of the 2001 amendments.

46 Accordingly, I answer question 1 “yes”, question 2 “yes” and question 3 “no”.

47 Question 4 was as follows:

“If the answer to question 1, or 2 is “no”, should the proceedings be transferred to the CTTT pursuant to s.23(2) of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW)?”

48 This question does not arise but I note that the plaintiff requested that if it were answered “no” then pursuant to section 23 (2) of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) (CTTT Act), the proceedings be transferred to the CTTT. The plaintiff drew specific attention to subsection (b) of that section which provides for the proceedings “to continue before the tribunal as if the proceedings had been instituted in the tribunal.” The reason for this request was that were this section not applied so that proceedings had to be initiated de novo at the CTTT, they would fall foul of the 30 day time limit imposed by s 86 (1) of the CTTT Act.

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05/11/2007 - Judgment date omitted - Paragraph(s) not applicable

08/11/2007 - Under the slip rule the answer to questions 3 has been changed from "yes" to "no". - Paragraph(s) Paragraph 46

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Citations

The Owners v Fair Trading [2007] NSWSC 1235

Most Recent Citation

The Owners - Strata Plan 64415 v Vero Insurance Ltd; The Owners - Strata Plan 64415 v Vero Insurance Ltd [2014] NSWSC 1500

Cases Citing This Decision

1

The Owners - Strata Plan 64415 v Vero Insurance Ltd; The Owners - Strata Plan 64415 v Vero Insurance Ltd [2014] NSWSC 1500

Cases Cited

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Statutory Material Cited

0

Defence Housing Authority v Building Insurers' Guarantee Corporation [2005] NSWSC 206

CITATION:	The Owners v Fair Trading [2007] NSWSC 1235 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	17/07/2007
JUDGMENT DATE :	2 November 2007
JURISDICTION:	Equity Division
JUDGMENT OF:	Associate Justice Macready at 1
CATCHWORDS:	Insurance: Other indemnity insurances. - Procedures: Supreme Court procedure. - Whether an appeal from a refusal of consent to an extension of time under the former insurance scheme under the Home Building Act lies to the Supreme Court. - Held that it does when it concerns an amount over $500,000.
CASES CITED:	Defence Housing Authority v Building Insurer's Guarantee Corporation (2005) 189 FLR 197.
PARTIES:	The Owners - Strata Plan No 58068 v Fair Trading Administration Corporation
FILE NUMBER(S):	SC 55028/2007
COUNSEL:	Mr I Jackman SC with Mr J Young for plaintiff Mr T Lynch for defendant
SOLICITORS:	Andreones Pty Limited for plaintiff