Wallace v Curry & 2 Ors

[2007] NSWSC 71

CITATION:	Wallace v Curry & 2 Ors [2007] NSWSC 71
HEARING DATE(S):	9 February 2007
JUDGMENT DATE :	14 February 2007
JURISDICTION:	Common Law Division, Administrative Law List
JUDGMENT OF:	Associate Justice Harrison
DECISION:	(1) The appeal is allowed in part; (2) Order (2) made by the Tribunal Member on 26 October 2005 is set aside; (3) Order (1) made by the Tribunal Member on 26 October 2005 is affirmed; (4) Costs are reserved.
CATCHWORDS:	Appeal decision of CTTT - relocation of house
LEGISLATION CITED:	Consumer Trader & Tenancy Tribunal Act 2001 (NSW) ss 28, 35, 65 & 67 Uniform Civil Procedure Rules 2005 (NSW) Part 50, Divisions 1 & 2
CASES CITED:	Chapman v Taylor & Ors; Vero Insurance Ltd v Taylor & Ors [2004] NSWCA 456 Italiano v Carbone & Ors [2005] NSWCA 177 Kalokerinos & Anor v HIA Insurance Services P/L & Anor [2004] NSWCA 312
PARTIES:	Stanley Charles Wallace - Plaintiff Rondahh Curry - First Defendant John McDonald - Second Defendant Consumer Trader & Tenancy Tribunal - Third Defendant
FILE NUMBER(S):	SC 30044/2006
COUNSEL:	Mr C S Ward - Plaintiff Mr G Carolan - First & Second Defendants
SOLICITORS:	Capital Lawyers, Canberra - Plaintiff Higgins & Higgins - First & Second Defendants Crown Solicitor, Submitting Appearance - Third Defendant
LOWER COURT JURISDICTION:	Consumer Trader and Tenancy Tribunal of NSW
LOWER COURT FILE NUMBER(S):	HB 05/21909
LOWER COURT JUDICIAL OFFICER :	Tribunal Member John Halliday
LOWER COURT DATE OF DECISION:	26 October 2005

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

ASSOCIATE JUSTICE HARRISON

WEDNESDAY, 14 FEBRUARY 2007

30044/2006 - STANLEY CHARLES WALLACE v
RONDAHH CURRY & 2 ORS
JUDGMENT (Appeal decision of CTTT – relocation
of house)

1 HER HONOUR: By amended summons filed 27 April 2006 the plaintiff seeks that an order for appeal be granted out of time and claims an order by way of certiorari in accordance with s 65 of the Consumer Trader and Tenancy Tribunal Act 2001 (NSW) (the Act) quashing the decision of the third defendant given on 26 October 2005, as to which reasons for decision were dated 9 December 2005. The plaintiff in this matter is Stanley Charles Wallace. The first defendant in this matter is Rondahh Curry, the second is John McDonald, and the third is the Consumer Trader and Tenancy Tribunal (the CTTT). The third defendant filed a submitting appearance. For convenience I shall refer to the parties by name.

The relevant statutory provisions

2 Section 65(1) of the Act provides:

“(1) Except as provided by this section, a court has no jurisdiction to grant relief or a remedy by way of:


(a) a judgment or order in the nature of prohibition, mandamus, certiorari or other relief, or

(b) a declaratory judgment or order, or

(c) an injunction,
in respect of any matter that has been heard and determined (or is to be heard or determined) by the Tribunal in accordance with this Act or in respect of any ruling, order or other proceeding relating to such a matter.”

3 Section 65(3) however provides:

“(3) A court is not prevented from granting relief or a remedy of a kind referred to in subsection (1) in relation to a matter in respect of which the Tribunal has made an order if the ground on which the relief or remedy is sought is that:


(a the Tribunal had no jurisdiction to make the order, or

(b) in relation to the hearing or determination of the matter, a party had been denied procedural fairness.”

4 Section 67 of the Consumer Trader and Tenancy Tribunal Act 2001 (NSW) (the Act) allows for an appeal to be made to this court on a question with respect to a matter of law. A reference to a matter of law includes a reference to a matter relating to the jurisdiction of the Tribunal. The onus lies on the plaintiff to demonstrate that there has been an error with respect to a matter of law.

5 The width of s 67 was discussed in Chapman v Taylor & Ors; Vero Insurance Ltd v Taylor & Ors [2004] NSWCA 456. Hodgson JA (with whom Beazley and Tobias JJA agreed) stated succinctly [at para 33]:

“… in my opinion, to establish an error of law by the Senior Member, it was necessary to show that he applied a wrong principle of law. That could be shown either from what he said, or because the ultimate result, associated with the facts that he expressly or impliedly found, indicates that he must have applied the wrong principle of law”.

6 See also Kalokerinos & Anor v HIA Insurance Services P/L & Anor [2004] NSWCA 312 at paragraphs [39], [40], [41], [47] and [59].

7 Section 67(3) of the Act provides that, after deciding the question, the subject of an appeal, the court may affirm the decision of the Tribunal, or it may make an order in relation to the proceedings in which the question arose as, in its opinion, should have been made by the Tribunal, or may remit its decision on the question to the Tribunal and order a rehearing of the proceedings by the Tribunal.

The Tribunal generally

8 At the outset, it is helpful to set out some of the provisions of the Act. The functions of the Tribunal are to adjudicate disputes between consumers and commercial disputes between landlords and tenants. The Tribunal is not constrained by the rigour of the courtroom. Its objects are to ensure that the Tribunal is accessible, its proceedings are efficient and effective, its decisions are fair and to enable proceedings before the Tribunal to be determined in an informal, expeditious and inexpensive manner. The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms (s 28(3)).

9 Evidence must be given on oath or statutory declaration (s 39(1)) but the Tribunal is not bound by the rules or practice of evidence and the Tribunal may inform itself on any matter in such manner as it considers appropriate (s 28(2)). The Tribunal must conform to the rules of natural justice, but broadly speaking, has control of and responsibility for its own procedures (s 28(1) and (2)). Its business is ordinarily conducted in public (s 33). Section 35 provides that the Tribunal must ensure that each party in any proceedings is given a reasonable opportunity to call or give evidence and otherwise present the party’s case (whether at a hearing or otherwise); and to make submissions in relation to the issues in the proceedings. Normally, a party to the proceedings has carriage of his or her own case and is not entitled to be legally represented (s 36(1)). The Tribunal has the power to award costs (s 53), but usually each party bears its own costs. Pursuant to s 54 of the Act, the Tribunal is obliged to use its best endeavours to bring the parties to a settlement before making an order. The Tribunal has a power to correct its decision (s 50). For the purpose of recovery of any amount, the Registrar can issue a certificate, identifying the person liable, and this operates as a judgment (s 51).

Grounds of appeal

10 Mr Wallace appeals the whole of the decision of the CTTT on the following grounds. Firstly, the Tribunal erred in deciding the proceedings on the basis of matters not in evidence in that there was no evidence of any contractual term between the parties that required Mr Wallace to make good any damage to the house; secondly, the Tribunal erred in finding in the absence of evidence that the floors of the house were uneven; thirdly, the Tribunal erred in finding, in the face of evidence to the contrary which was accepted by the Tribunal, that the floors of the house which were previously made of concrete, were inadequately reconstructed by Mr Wallace; fourthly, the Tribunal erred in its identification of the terms of the contract between the parties; and fifthly, the Tribunal erred, in that, having found that the terms of the contract required the house to be transported and “rejoined” the Tribunal found that the plaintiff was liable to make good and/or rectify and/or renovate to habitable standard the house in the absence of any evidence to support such a finding.

11 On 26 October 2005 the Tribunal Member made orders that firstly, Stanley Charles Wallace trading as Mid West Building Removals was to pay to the applicants, Rondahh Curry and John McDonald the sum of $28,450.00 on or before 26 January 2006; and second that Mr Wallace may remove the house once payment had been made to Ms Curry and McDonald.

Leave for an extension of time to lodge an appeal

12 The plaintiff applies for leave for an extension of time in relation to the orders of the CTTT made on 26 October 2005. Part 50, Divisions 1 and 2, of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) set out the provisions to be followed for appeals and extensions of time to appeal, particularly r 50.3: Proceedings are required to be commenced within 28 days of the material date. The material date is 26 October 2005. The time to commence these proceedings expired on 24 November 2005. The proceedings were commenced on 6 April 2006, over five months out of time. Ms Curry and Mr McDonald oppose this order being granted. The reasons for the decision were not published until 22 December 2005. I accept that in order for Mr Wallace to lodge this appeal he needed the written reasons so as to seek legal advice. The second reason is that due to lack of funds, he could not afford a solicitor. However, on 27 February 2006, Mr Wallace received a letter from the Sheriff’s Office and that prompted him to instruct his solicitor to appeal. Even though these reasons do not adequately explain the delay, it is clear that the second order made by the Tribunal Member should be set aside. Hence, in the interests of justice, an extension of time to file this appeal is granted.

13 Ms Curry and Mr McDonald sought damages arising from the relocation of their house from Orange NSW to Mendooran NSW by Mr Wallace. Tribunal Member John Halliday, in his written reasons dated 9 December 2005, dealt with the conflicting accounts of the applicants Rondahh Curry and John McDonald and the respondent Stanley Charles Wallace.

The Tribunal Member’s reasons

14 It was common ground before the Tribunal Member John Halliday that an oral agreement had been reached between the parties.

15 The evidence of Ms Curry and Mr McDonald was that the terms of the oral agreement were that the house was to be cut in half, transported from Orange to Mendooran, put on piers constructed by the respondent, and put back together again at a cost of around $20,000 to the applicants. Mr Wallace’s evidence was that the agreement reached between the parties was solely for loading the house onto a truck, transporting the house from Orange to Mendooran, and then lowering the house onto blocks that had been constructed by them.

16 The Tribunal Member had no hesitation in accepting Ms Curry and Mr McDonald’s version of events what was that discussions took place resulting in the applicants relying upon the respondent to move their house to a new location with the legitimate expectation that the house would be cut in half and put back together again for the money they paid to the respondent.

17 The Member accepted the evidence given by Ms Curry and Mr McDonald over that given by Mr Wallace. He had reservations with Mr Wallace’s evidence and stated:

“The evidence of the respondent is ambiguous at times and I am not satisfied that any great reliance can be placed upon that evidence. Some of the explanations proffered by the respondent [Wallace] do not make sense and may be characterised as explanations after the fact. In other words, the respondent has made to order excuses as the facts of the case unfolded.
…

I am unable to accept that the respondent was not involved in the cutting of the house or the construction of the footings and piers.

The statement of the respondent that the house was ‘already cut in half’ when he arrived is not credible at all. Nor is his statement that he was not involved in the construction of the footings and piers. It follows that I do not accept that the respondent was hired solely to transport the house.”

18 Importantly, the Tribunal Member held that the terms of the agreement were to cut the house in half, transport the pieces and set it on piers and rejoin the house.

19 In this appeal, Counsel for Mr Wallace submitted that the essential terms of the contract were that the house would be “transported” and “rejoined”, that rejoining connotes the structural joining of the frame of the house in its new location, and that is precisely what occurred. Counsel further submitted that it was not the role of Mr Wallace to “make good” the house for occupation, nor to meet any of the alleged defects described in the building reports tendered by Ms Curry and Mr McDonald.

20 At the hearing of this appeal, Counsel for Mr Wallace emphasised that the Tribunal Member necessarily implied a term in the contract between the parties that the house, following relocation, would require extensive renovation and rectification prior to habitation. However, there was no finding that following the relocation of the house Mr Wallace was required to return the house to a habitable standard. There was evidence that Mr Wallace failed to perform those essential terms of the contract in a proper and workmanlike manner which gave rise to damages.

21 There has been no error of law. In relation to the other grounds of appeal they relate to findings of fact for which there is evidence in support.

Damages

22 Counsel for Mr Wallace argued that damages awarded was not damage for which Mr Wallace would be liable in tort and that rectification and renovation of the relocation of the house is contractually a matter for Ms Curry and Mr McDonald.

23 There were various reports concerning damage which include those of Mr John Curry, John Kubowicz, Baker Saran (prior to transportation) and a detailed report from Mr Bassingthwaighte dated 9 November 2004.

24 Under the heading “Summary” at 4.1 Mr Bassingthwaighte stated:

“The house during transportation and re-construction sustained the majority of its damage. We believe that the following could have caused this damage.
a) Inadequate bracing and support during transport.
b) Mismatching of roof sheeting during reconstruction
c) Lack of levelling and jacking on piers.
d) Poor section size and quality of timber posts.
e) Lack of detail during reinstatement.
f) Lack of compliance with relevant construction and building codes.
g) Unfinished construction and reinstatement.”

25 This report contained photographs of the condition of the house. Ms Curry and McDonald claimed the sum of $43,000.

26 The Tribunal Member stated:

“I am satisfied that the reports submitted by the applicants are a true indication of the damage sustained to the house by the respondent either in transport or in the positioning on the piers.

I am satisfied that the respondent has breached the agreement in that he has caused the damage to the house and that he has not constructed the footings and piers to an acceptable professional standard.
However, in the circumstances of this particular case I do agree with the respondent in respect to the economies of scale outlines in the case. That is, how can it be justified to economically repair an item purchased for $6,000 in an amount of $43,666.
I am of the opinion that the home is beyond economic repair.
In this situation I am satisfied that the applicant should be restored to the position in which they were prior to the agreement being made and the subsequent breach of that agreement.
Accordingly, the respondent is to refund the monies paid to him by the applicants - $22,450. The respondent is also ordered to pay the purchase price of the house in an amount of $6,000. The total amount ordered in favour of the applications is therefore $28,450. This amount is to be paid to the applicants on or before 26 January 2006.
The house would then belong to the respondent and he would be responsible for the removal of that house once payment has been made to the applications.

27 There were various methods by which he could have assessed damages. It was open to the Tribunal Member to adopt the approach he did. Mr Wallace had to refund the agreed sum under the contract plus pay for the purchase of the house. This is a lesser sum than $43,000 that was claimed by Ms Curry and Mr McDonald. There is no error of law.

Certiorari

28 Mr Wallace claimed an order by way of certiorari in accordance with s 65 of the Act quashing the decision of the Tribunal Member given on 26 October 2005 because Mr Wallace was denied procedural fairness in that the Tribunal Member determined the proceedings on the basis of a contract the terms of which were not in evidence and/or denied the plaintiff the opportunity to be heard as to the Mr Wallace’s contractual liability to make good or repair and/or renovate the house to a habitable standard.

Procedural fairness in Tribunal

29 Section 28 of the CTTT Act reads:

“28 Procedure of Tribunal generally

(1) The Tribunal may, subject to this Act, determine its own procedure.

(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of procedural fairness.

(3) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.

(4) The Tribunal is to take such measures as are reasonably practicable to ensure that the parties in any proceedings understand:


(a) the nature of the assertions made in the proceedings and the legal implications of those assertions, and

(b) the procedure of the Tribunal and any decision or ruling made by the Tribunal that relates to the proceedings.

(5) The Tribunal
…

(g) may dismiss any proceedings if the applicant fails to attend a hearing, …”

30 Section 35 of the CTTT Act reads:

“Opportunity for parties to present case

The Tribunal must ensure that each party in any proceedings is given a reasonable opportunity:

(a) to call or give evidence and otherwise present the party’s case (whether at a hearing or otherwise), and

(b) to make submissions in relation to the issues in the proceedings.”

31 Section 35 provides that the CTTT “must ensure” that each party is given “a reasonable opportunity” to present its case. There are provisions which allow the CTTT a significant degree of flexibility in adapting its procedures to the exigencies of the case in determining the manner in which the proceedings will be conducted. Nevertheless, those provisions should not be construed so as to derogate from other provisions cast in obligatory language which constitute core elements of procedural fairness - see Italiano v Carbone & Ors [2005] NSWCA 177 at [105] and [106].

32 On 20 May 2005 and 14 July 2005 directions were made for the parties to file witness statements, expert reports or other documents they intended to rely upon at the hearing.

33 On 26 October 2005 the matter was heard. The Tribunal Member gave an ex tempore judgment and subsequently published his written reasons on 9 December 2005. Each party gave evidence at the hearing and questions were asked of each witness.

34 The Tribunal Member in his reasons summarised the evidence of both parties and made findings about the terms of the contract and the plaintiff’s breach in terms of his failure to reconstruct the dwelling in a proper and workmanlike manner following transportation. Mr Wallace was given an adequate opportunity to prepare and present his case. There has been no denial of procedural fairness.

The second order made by the Tribunal Member

35 The Tribunal Member made an order that Mr Wallace remove the house once payment had been made to Ms Curry and Mr McDonald. Counsel for Mr Wallace submitted that this order was beyond the jurisdiction of the Tribunal. Counsel for Ms Curry and Mr McDonald conceded that the decision of the Member that the plaintiff should assume ownership of the house after payment of the damages award constituted a significant burden on the plaintiff. It was conceded to that extent there would be difficulty in implementing that aspect of the award, it would be appropriate for the Court to consider amending the award in this respect pursuant to s 67(3) of the Act. I agree with the view that order (2) made by Tribunal Member Halliday should be set aside.

36 The appeal is allowed in part. Order (2) made by Tribunal Member Halliday on 26 October 2005 is set aside. Order (1) made by Tribunal Member Halliday on 26 October 2005 is affirmed.

37 In relation to costs. Mr Wallace’s complaint about Order (2) only came to light in his Counsel’s submissions. They were served the day before the hearing of this appeal. Counsel for Ms Curry and Mr McDonald immediately conceded this point. Costs are reserved.

The Court orders:

(1) The appeal is allowed in part.

(2) Order (2) made by Tribunal Member Halliday on 26 October 2005 is set aside.

(3) Order (1) made by Tribunal Member Halliday on 26 October 2005 is affirmed.

(4) Costs are reserved.
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