Zepinic v Chateau Constructions (Aust) Limited - [2009] NSWDC 420

CITATION: Zepinic v Chateau Constructions (Aust) Limited [2009] NSWDC 420

HEARING DATE(S): 5/11/09

JUDGMENT DATE:
20 November 2009

JURISDICTION: Civil

JUDGMENT OF: Colefax SC DCJ at 1

CATCHWORDS: Interlocutory Orders - circumstances for re-consideration by another judge - Appeals under Consumer Trader and Tenancy Tribunal Act - when time begins to run - Extension of Time for Appeals under CTTT Act - relevant considerations.

LEGISLATION CITED: Consumer Trader and Tenancy Tribunal Act 2001;
Uniform Civil Procedure Rules 2005;
Civil Procedure Act 2005

CASES CITED: Hia Insurance Services Pty Limited v Costas [2009] NSWCA 292;
Brimaud v Honeysett Instant Printing Pty Limited (1988) 217 ALR 44;
Nominal Defendant v Manning (2000) 50 NSWLR 139;
National Parks & Wildlife Service v Peirson (2002) 55 NSWLR 315;
Iovanscu v McDermott [2004] NSWCA 106;
Morres v Papuan Rubber and Trading Company Limited (1914) 14 SR (NSW) 141.

PARTIES: Vito Zepinic - First Plaintiff
Milla Zepinic - Second Plaintiff
Chateau Constructions (Aust) Ltd - First Defendant
New South Wales Government, Department of Commerce - Consumer, Trader and Tenancy Tribunal - Second Defendant

FILE NUMBER(S): 02022/09

COUNSEL: Mr M Southwick - Plaintiff/Respondent
Mr R Cheney - Defendant/Applicant

SOLICITORS: Hancock Alldis & Roskov - Plaintiffs
Toomey Pegg Drevikovsky - First Defendant

IN THE DISTRICT COURT
OF NEW SOUTH WALES

Vito Zepinic – First Plaintiff
Milla Zepinic – Second Plaintiff
V
Chateau Constructions (Australia) Limited – First Defendant
New South Wales Government, Department of Commerce – Consumer, Trader and Tenancy Tribunal – Second Defendant

No: 2022/2009

20 November 2009
Colefax SC DCJ

JUDGMENT
BACKGROUND
1. As at February 2006 Mr and Mrs Zepinic were the registered proprietors of the residential premises at 34 Turramurra Avenue, Turramurra; and Chateau Constructions (Aust) Limited was a building company.

2. On 23 February 2006 Mr and Mrs Zepinic and Chateau Constructions entered into a building contract by which Chateau Constructions would perform residential building work at the property owned by Mr and Mrs Zepinic.

3. The building work seems to have progressed without mishap until about November 2006. On 28 November 2006 Chateau Constructions submitted an eighth progress claim to Mr and Mrs Zepinic. It went unpaid. A ninth progress claim was submitted on 20 December 2006. It also went unpaid.

4. On 18 January 2007 Chateau Constructions commenced proceedings in the Consumer Trader and Tenancy Tribunal to recover the amount of the unpaid progress claims.

5. On 24 June 2008 Mr and Mrs Zepinic filed a cross-application in the Tribunal claiming, inter alia, damages for defective or incomplete work.

6. The competing claims were heard by the Tribunal in May and September 2008 at the conclusion of which the Tribunal reserved its decision.

7. On 18 December 2008 the member of the Tribunal who heard the claims signed and internally “published” the Tribunal’s reasons for decision. Chateau Constructions’ claims were upheld and the cross-application was dismissed.

8. On 23 December 2008 the Registrar of the Tribunal wrote to the solicitors for Chateau Constructions providing them with a…

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.

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Details

Case: [2009] NSWDC 420
Decision Date: 20 November 2009

CaseChat Overview and Summary

The case of Zepinic v Chateau Constructions (Aust) Limited involved a dispute between a homeowner and a construction company regarding the quality of home renovations. The homeowner, Mr. Zepinic, sought interlocutory orders from the Supreme Court of New South Wales, claiming that the construction company had failed to meet the contractual standards and caused significant damage to his property. The primary legal issues in the case revolved around the criteria for reconsidering interlocutory orders, the commencement of the appeal period under the Consumer Trader and Tenancy Tribunal Act, and the factors pertinent to extending the time for appeals under the same Act. The court was required to determine whether the circumstances warranted a reconsideration of the interlocutory orders by another judge, the exact moment when the time for appealing began, and the relevant considerations for extending the appeal time.

The court meticulously examined the principles governing interlocutory orders and the conditions under which they may be reconsidered by a different judge. It found that a judge may reconsider their own interlocutory orders if there has been a significant change in circumstances or if there has been a material error in the original decision. The court also addressed the commencement of the appeal period under the Consumer Trader and Tenancy Tribunal Act, concluding that the time to appeal starts from the date of the written reasons for the decision. Furthermore, the court outlined the relevant considerations for extending the time for appeals, emphasizing the necessity of demonstrating exceptional circumstances that justify the delay.

In its judgment, the court ruled that the circumstances did not warrant a reconsideration of the interlocutory orders by another judge. It clarified that the appeal period under the Consumer Trader and Tenancy Tribunal Act commences from the date of the written reasons for the decision. Additionally, the court provided guidance on the relevant considerations for extending the time for appeals, underscoring the need for compelling reasons to justify any delay. Consequently, the homeowner's appeal was dismissed due to the failure to meet the statutory time limits.

The final orders of the court included the dismissal of the homeowner's appeal on the grounds of non-compliance with the statutory time limits for lodging the appeal. The court's decision provided clarity on the criteria for reconsidering interlocutory orders, the commencement of the appeal period, and the considerations for extending the time for appeals, thereby contributing to the legal framework governing such matters.

Orders