Court of Appeal
Supreme Court
New South Wales
- Summary available
Medium Neutral Citation: Torbey Investments Corporated Pty Ltd v Ferrara [2017] NSWCA 9 Hearing dates: 23 November 2016 Decision date: 07 February 2017 Before: McColl JA at [1];
Basten JA at [2];
Simpson JA at [106]Decision: (1) Set aside orders 1 and 2 made by the District Court on 18 December 2015 on the applicant’s appeal.
(2) In place thereof, make the following orders:
(a) allow the appeal and vary the orders made by the Consumer, Trader and Tenancy Tribunal on 17 May 2013 in the following respects:
(i) in order 1, vary the amount the respondent homeowners are liable to pay to the applicant builder to $50,386.40, in lieu of $38,171.40;
(ii) consequentially, vary order 3 to an order that the applicant builder pay to the respondent homeowners the sum of $104,365.60.(b) no variation of the costs order in the District Court.
(3) Order that the applicant pay 85% of the respondents’ costs in this Court.Catchwords: APPEAL AND REVIEW – judicial review – supervisory jurisdiction – whether relief limited to that available under prerogative writs – whether court can make order replacing determination of court below if only result legally available in accordance with reasons of court
CONTRACTS – construction and interpretation of contracts – purposive interpretation – whether terms imposing procedural requirements and time limits for notices of breach and termination were mandatory – effect of non-compliance
JUDGMENTS – recoverability of interest – award of interest on amount payable for breach of contract – power of tribunal to order pre-determination interest
JUDICIAL REVIEW – grounds of review –discretion not to intervene on finding error of law – amount in issue not warranting remittal – conduct of party seeking reviewLegislation Cited: Civil Procedure Act 2005 (NSW), s 101; Pt 6, Div 1
Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), s 67
Consumer, Trader and Tenancy Tribunal Regulation 2009 (NSW), cl 49
Supreme Court Act 1970 (NSW), s 69Cases Cited: Comdox v Robins [2009] NSWSC 367
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088
Eriksson v Whalley [1971] 1 NSWLR 397
Kennedy v Collings Construction Co Pty Ltd [1991] 7 BCL 25
Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291
Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; 309 ALR 67
Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164; [2010] HCA 48
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317
SHKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 545
SAS Trustee Corporation v Woollard (2014) 86 NSWLR 367; [2014] NSWCA 75
Spectra Pty Ltd v Pindari Pty Ltd [1974] 2 NSWLR 617
Solution 6 Holdings Ltd v Industrial Relations Commission (NSW) (2004) 60 NSWLR 558; [2004] NSWCA 200
Swift v SAS Trustee Corporation [2010] NSWCA 182
Torbey Investments Corporated Pty Ltd v…
Continue reading Torbey Investments Corporated Pty Ltd v Ferrara
Sign in free to access the full text
- AGLC
- Torbey Investments Corporated Pty Ltd v Ferrara [2017] NSWCA 9
- Case
- [2017] NSWCA 9
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to determine whether the District Court erred in its review of the Tribunal’s decision, particularly concerning the construction of the contract and the award of interest. Specifically, the court had to consider whether procedural requirements and time limits for notices of breach and termination within the contract were mandatory, and the effect of non-compliance. Furthermore, the court examined the recoverability of interest and the power of the Tribunal to order pre-determination interest.
The Court of Appeal found that the District Court had erred in its interpretation of the contract and the application of the relevant legal principles. The court applied a purposive approach to contract interpretation, concluding that certain procedural requirements were indeed mandatory. The court reasoned that the District Court’s decision had failed to properly consider the impact of non-compliance with these mandatory terms. Consequently, the Court of Appeal set aside the orders of the District Court and varied the orders of the Consumer, Trader and Tenancy Tribunal.
The Court of Appeal allowed the appeal, varying the amount the respondent homeowners were liable to pay to the applicant builder to $50,386.40. Consequently, the order for the applicant builder to pay the respondent homeowners was varied to $104,365.60. The costs order in the District Court was not varied, but the applicant was ordered to pay 85% of the respondents’ costs in the Court of Appeal.
Orders
Orders of the court
(1) Set aside orders 1 and 2 made by the District Court on 18 December 2015 on the applicant’s appeal.
(2) In place thereof, make the following orders:
(a) allow the appeal and vary the orders made by the Consumer, Trader and Tenancy Tribunal on 17 May 2013 in the following respects:
(i) in order 1, vary the amount the respondent homeowners are liable to pay to the applicant builder to $50,386.40, in lieu of $38,171.40;
(ii) consequentially, vary order 3 to an order that the applicant builder pay to the respondent homeowners the sum of $104,365.60.
(b) no variation of the costs order in the District Court.
(3) Order that the applicant pay 85% of the respondents’ costs in this Court.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.