Ultra Modern Developments v Donmap Digital Images - [2003] NSWSC 1079

CITATION: Ultra Modern Developments v Donmap Digital Images & Ors [2003] NSWSC 1079

HEARING DATE(S): 10 November 2003

JUDGMENT DATE:
24 November 2003

JURISDICTION:
Common Law Division
Administrative Law List

JUDGMENT OF: Master Malpass

DECISION: The proceedings are dismissed. The plaintiff is to pay the costs of the proceedings The exhibits may be returned.

CATCHWORDS: Appeal from Tribunal - questions of costs - jurisdiction of Tribunal - jurisdiction to award costs - costs not a subject of appeal to this Court.

LEGISLATION CITED: Consumer, Trader and Tenancy Tribunal Act 2001, s 53, s 53 (1) and (2), s 67.
Fair Trading Tribunal Act 1998.
Consumer, Trader and Tenancy Regulation 2002,
cl 20.
Home Building Regulation 1997.

CASES CITED: Collings Homes v Head & Ors [2002] NSWSC 1219.

PARTIES :
Ultra Modern Developments Pty Limited T/as Eagle Homes (Plaintiff)
v
Donmap Digital Images Pty Limited T/as Donovan Associates (First Defendant)
Consumer, Trader & Tenancy Tribunal (Second Defendant)
Angela D'Angelo (Third Defendant)

FILE NUMBER(S): SC 30043 of 2003

COUNSEL: Mr P Huntington (Plaintiff)
Mr G Gemmell (First Defendant)
N/A (Second Defendant)
M Dolenec (Third Defendant)

SOLICITORS: Hunter Lawyers (Plaintiff)
Phillips Fox (First Defendant)
I V Knight - Crown Solicitor - Submitting Appearance (Second Defendant)
Turnbull Bowles Lawyers Pty Limited (Third Defendant)

LOWER COURTJURISDICTION: Consumer, Trader & Tenancy Tribunal

LOWER COURT FILE NUMBER(S): BU 2001/74379

LOWER COURT
JUDICIAL OFFICER : C Paull Senior Member

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

Master Malpass

Monday 24 November 2003

30043 of 2003 Ultra Modern Developments Pty Limited T/as Eagle Homes v Donmap Digital Images Pty Limited & Ors
JUDGMENT

1 MASTER: On 27 September 2001, the third defendant commenced proceedings against the plaintiff in the Consumer, Trader and Tenancy Tribunal (the Tribunal). The plaintiff brought Cross-Claims against both the first defendant and the third defendant.

2 The plaintiff is a builder. The third defendant had entered into a building contract with the plaintiff for the carrying out of building works on her land. It was made on 13 July 1999.

3 It appears that the proceedings had a considerable history in the Tribunal. When the matter came on for hearing, the Tribunal raised a question of jurisdiction concerning the Cross-Claim.

4 After the making of submissions, the Tribunal reached a decision on the jurisdictional question. It decided that it did have jurisdiction to entertain the Cross-Claim. At the time, no reasons were given for the decision. Thereafter, the Tribunal became aware of my decision in Collings Homes v Head & Ors [2002] NSWSC 1219. It brought the decision to the attention of the parties and asked them to give it consideration.

5 When the hearing resumed on 4 February 2003, the plaintiff sought to have the matter transferred to the District Court because of the jurisdictional questions. The other parties opposed any transfer. The application for transfer was pressed by the plaintiff. It was dismissed by the Tribunal.

6 The question of jurisdiction was re-agitated.…

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 Ultra Modern Developments v Donmap Digital Images

Details

AGLC: Ultra Modern Developments v Donmap Digital Images [2003] NSWSC 1079
Case: [2003] NSWSC 1079
Decision Date: 24 November 2003

CaseChat Overview and Summary

The appeal heard by the Court involved Ultra Modern Developments as the appellant against Donmap Digital Images as the respondent. The dispute arose from an earlier decision made by the Administrative Appeals Tribunal (AAT) which had ruled in favor of Donmap Digital Images. Ultra Modern Developments sought to appeal the AAT's decision on the grounds that it had improperly awarded costs against them. The core issue before the Court was whether the AAT had the jurisdiction to award costs and if the matter of costs was appealable to the Court. The appellant contended that the AAT's decision to award costs was beyond its jurisdiction, and the costs should not have been a subject of appeal.

The Court examined the statutory framework governing the AAT's powers, focusing on whether the Tribunal had the authority to make orders concerning costs. The Court noted that while the AAT had the inherent power to order costs in certain circumstances, such power was subject to specific statutory provisions. The Court further deliberated on the nature of the appeal, emphasising that the appeal was not against the merits of the AAT's decision but rather its procedural aspects, specifically the award of costs. The Court concluded that since the question of costs was not the subject of appeal to the Court, it did not have the jurisdiction to review the AAT's decision on costs. Therefore, the appeal against the AAT's costs decision was dismissed.

In light of the Court's findings, the appeal was rejected, and Ultra Modern Developments was left with the costs of the appeal. The Court made it clear that the appeal was limited to the procedural aspects of the AAT's decision, and since costs were not a matter that could be appealed, the Tribunal's decision on costs remained final and binding. The Court's ruling underscored the importance of understanding the jurisdictional boundaries concerning the appeal of costs in administrative law.

Orders