Issue 2 of 2007

The CTTT's Legal Bulletin provides information about Supreme Court decisions and legislation that relates to the types of disputes over which the CTTT has jurisdiction.  The information contained in this Bulletin is not legal advice and is intended as a general guide only.  You should rely on your own advice or refer to the full cases and legislation in any proceedings before the CTTT.

The full text of the cases and legislation is available on Lawlink.

On 1 September 2007, provisions of the Consumer Claims Regulation 2007 came into effect for claims lodged in the CTTT on or after that date.  The most significant amendment increases the CTTT's jurisdiction limit from $25,000 to $30,000.  Also, applications relying on the Consumer Claims Act must be lodged in writing in accordance with the Consumer, Trader and Tenancy Tribunal Act 2001.

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Keywords:  Residential Tenancy Agreement – power of the CTTT to modify – rebate of rent provision – applicable only to continuing fixed term agreements – Section 14(2) Residential Tenancies Act 1987.

Background

Mr Rouvinetis (“the tenant”) was a long term tenant of theNew South Wales Land and Housing Corporation (“the landlord”).  A dispute arose over a term in the tenancy agreement that allowed the landlord to grant rebates or waive rent at its discretion.  The tenant made an application to the CTTT to have the term deleted from the tenancy agreement.  The CTTT decided that it had no authority to remove the clause.

Appeal to the Supreme Court

The tenant appealed to the Supreme Court arguing that section 14(2) Residential Tenancies Act 1987 (“the Act”) allows the CTTT to modify the terms of a residential tenancy agreement.  The landlord asserted that the CTTT had no power to modify the term.  Associate Justice Malpass suggested that the tenant had misunderstood the purpose of the term, which is designed to benefit the tenant.  His Honour explained that section 14(2) has limited application, allowing the CTTT to make modifications to a fixed term tenancy agreement so that after the term ends, the CTTT  can make appropriate modifications so the agreement can continue.  His Honour pointed out that there was no benefit to the tenant in removing the term.

Decision

The appeal was dismissed and the tenant ordered to pay the costs of the appeal.

Read the full text of this case on the Lawlink website.

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Keywords:  Refusal of application for adjournment – whether denial of procedural fairness – Section 35 Consumer, Trader and Tenancy Tribunal Act 2001.

Background

Ms O’Hara (“the landlord”) leased a property to Jared Russell, Jeremy Burton, and Daniel O’Connor (“the tenants”).  When the tenants vacated the property, the landlord made an application to the CTTT seeking orders that the tenants repair damage to the property.  The application was withdrawn by the landlord before the hearing.  The tenants then applied to the CTTT for return of the rental bond.

That application was listed for hearing and the landlord did not attend.  The CTTT ordered return of the rental bond.  The landlord then applied to the CTTT for a rehearing, which was granted.  Prior to the new hearing taking place the landlord wrote to the CTTT requesting an adjournment.  The CTTT refused the request and wrote to the landlord informing her that the hearing would proceed.  When the hearing was due to commence the landlord requested an adjournment on the basis that she was too unwell to give evidence and tendered a medical certificate.  The adjournment was granted.

At the subsequent hearing proceedings were only partially completed and another date was set.  Prior to the next hearing the landlord telephoned the CTTT Registry to request an adjournment on the basis that the landlord’s mother was in hospital and the landlord intended to travel to see her.  The landlord sent a letter detailing her mother’s hospitalisation and stating her intention to travel to be by her side.  The CTTT Registry left a voice mail message on the landlord’s phone informing her that the adjournment request had not been granted.  The landlord did not appear at the hearing so the CTTT re-considered the letter that the landlord had sent.  The tenants complained that the landlord had not notified them of her intention to request an adjournment and there had been several previous adjournments.  The CTTT rejected the landlord’s adjournment application and the matter was heard in her absence.

Appeal to Supreme Court

The landlord appealed the CTTT's decision not to grant an adjournment on the grounds that there was a denial of procedural fairness.  Justice Hoeben stated that the CTTT must ensure that each party in proceedings is given a reasonable opportunity to provide evidence and make submissions in relation to the issues.  Justice Hoeben stated that since the landlord had made a number of "specious" adjournment applications on earlier occasions, it was difficult not to form an impression that she was consciously trying to drag out the proceedings. However, Justice Hoeben decided that the serious illness of the landlord’s mother did constitute a proper reason for an adjournment, and concluded that there had been a denial of procedural fairness in not granting the adjournment.

Decision

The orders of the CTTT were set aside and the matter was remitted with each party to pay their own costs.

Read the full text of this case on the Lawlink website.

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Keywords:  Strata schemes – approval of special levies – procedure for challenging – Section 65 Consumer, Trader and Tenancy Tribunal Act 2001 – Section 162 Strata Schemes Management Act 1996.

Background

Strata plan 6699 (“SP6699”) required repair and maintenance to windows, lifts and balcony railings.  Prior to the Annual General Meeting (“the AGM”) the executive committee of SP6699 (“the committee”) obtained an indicative quote for the cost of replacing the windows and gave all the lot owners notice that a motion would be made at the AGM to raise a special levy to cover the cost of replacing the windows.  At the AGM the motion was passed.

Mrs Hill (“the lot owner”) applied to a Strata Adjudicator for orders against members of the committee and the strata managing agent.  The lot owner sought orders that the special window levy should be declared void as it was ‘altering’ the building not ‘making a repair’.  The lot owner also sought an order for the compulsory appointment of a managing agent under section 162 of the Strata Schemes Management Act 1996 (“the Act”).

Decision of the Adjudicator

The Adjudicator decided that the replacement of the existing windows fell under the repair and maintenance responsibilities of an Owners Corporation under section 62 of the Act.  The majority of lot owners at the AGM agreed that a special levy was necessary to fix the problem.  The Adjudicator commented that although it would have been reasonable for the owners to expect a definite quote before agreeing to raise a specified sum as a levy, the majority of owners accepted the procedure suggested by the committee.

The Adjudicator reiterated that an order appointing a managing agent can be made where the management of a strata scheme is not functioning satisfactorily.  The Adjudicator decided that there was insufficient evidence to establish this.  The Adjudicator pointed out that one or two lot owners disagreeing with majority decisions is not evidence of a serious problem.  The Adjudicator also stated that the proper respondent should have been the Owners Corporation and dismissed the application.

Decision of the Supreme Court

Instead of appealing the Adjudicator’s order to the CTTT, the lot owner made a fresh application to the Supreme Court for a declaration that the levy was void.  The lot owner claimed that the committee did not properly consider quotes for the relevant work to be done.  The committee sought orders dismissing the application because no proper defendant had been named, and because the proceedings were an abuse of process as the CTTT had already decided the same issues.

Justice Palmer noted that the lot owner had been told by the Adjudicator that it was the Owners Corporation, not the executive members that should be the respondents in the application.  His Honour agreed the proceedings were an abuse of process, as they were barred by section 65 of the Consumer Trader and Tenancy Tribunal Act 2001 which provides that a court cannot hear a matter already determined by the CTTT.  Justice Palmer reiterated that the correct procedure for a person who is dissatisfied with the decision of the CTTT is to appeal the decision on the basis of an error of law.

Decision

The Supreme Court dismissed the application and ordered the lot owner to pay the Owners Corporations' costs.

Read the full text of this case on the Lawlink website.

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Keywords:  Strata schemes – approval of special levies – procedure for challenging – Section 65 Consumer, Trader and Tenancy Tribunal Act 2001 – Section 162 Strata Schemes Management Act 1996.

Background

Strata plan 6699 (“SP6699”) required repair and maintenance to windows, lifts and balcony railings.  Prior to the Annual General Meeting (“the AGM”) the executive committee of SP6699 (“the committee”) obtained an indicative quote for the cost of replacing the windows and gave all the lot owners notice that a motion would be made at the AGM to raise a special levy to cover the cost of replacing the windows.  At the AGM the motion was passed.

Mrs Hill (“the lot owner”) applied to a Strata Adjudicator for orders against members of the committee and the strata managing agent.  The lot owner sought orders that the special window levy should be declared void as it was ‘altering’ the building not ‘making a repair’.  The lot owner also sought an order for the compulsory appointment of a managing agent under section 162 of the Strata Schemes Management Act 1996 (“the Act”).

Decision of the Adjudicator

The Adjudicator decided that the replacement of the existing windows fell under the repair and maintenance responsibilities of an Owners Corporation under section 62 of the Act.  The majority of lot owners at the AGM agreed that a special levy was necessary to fix the problem.  The Adjudicator commented that although it would have been reasonable for the owners to expect a definite quote before agreeing to raise a specified sum as a levy, the majority of owners accepted the procedure suggested by the committee.

The Adjudicator reiterated that an order appointing a managing agent can be made where the management of a strata scheme is not functioning satisfactorily.  The Adjudicator decided that there was insufficient evidence to establish this.  The Adjudicator pointed out that one or two lot owners disagreeing with majority decisions is not evidence of a serious problem.  The Adjudicator also stated that the proper respondent should have been the Owners Corporation and dismissed the application.

Decision of the Supreme Court

Instead of appealing the Adjudicator’s order to the CTTT, the lot owner made a fresh application to the Supreme Court for a declaration that the levy was void.  The lot owner claimed that the committee did not properly consider quotes for the relevant work to be done.  The committee sought orders dismissing the application because no proper defendant had been named, and because the proceedings were an abuse of process as the CTTT had already decided the same issues.

Justice Palmer noted that the lot owner had been told by the Adjudicator that it was the Owners Corporation, not the executive members that should be the respondents in the application.  His Honour agreed the proceedings were an abuse of process, as they were barred by section 65 of the Consumer Trader and Tenancy Tribunal Act 2001 which provides that a court cannot hear a matter already determined by the CTTT.  Justice Palmer reiterated that the correct procedure for a person who is dissatisfied with the decision of the CTTT is to appeal the decision on the basis of an error of law.

Decision

The Supreme Court dismissed the application and ordered the lot owner to pay the Owners Corporations' costs.

Read the full text of this case on the Lawlink website.

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Keywords:  Purpose of credit – business purpose declarations – requirement to issue default notice if Consumer Credit Code applies – Sections 6, 11 and 80 Consumer Credit Code – Section 10 Consumer Credit Regulation.

Background

This case was commenced in the Supreme Court of New South Wales. Mr Ashikian and Ms Blundell (“the consumers”), a defacto couple relying on social security benefits, purchased a property using money their family had lent them. The consumers later obtained a loan from a finance company so they could repay their family. They were unable to meet mortgage repayments and defaulted. The consumers refinanced by taking a second loan but again missed repayments. The consumers refinanced by obtaining a third loan, but were still unable to meet the required instalments.

The consumers obtained a fourth loan from a network of five finance companies (“the lenders”).  During the application process a finance broker and solicitor attended the consumers’ home with a large bundle of documents. They stayed for about fifteen minutes during which time the consumers received no explanation of the documents and had no opportunity to read them. The consumers were told to sign but not date the documents. Contained in the documents which the consumers signed was a declaration that the credit was to be ‘applied for business or investment purposes’ (“the declaration”) which meant they would lose the protection of the Consumer Credit (NSW) Code 1994 (“the Code”). Shortly after the settlement took place the consumers defaulted in their interest repayments.

Hearing in the Supreme Court

The lenders commenced an action in the Supreme Court of New South Wales claiming possession of the property. The Court considered three issues. The first issue was whether the lenders should have issued a notice before claiming possession of the property. That requirement depended on whether the Code applied. The question of whether the Code applied was to be determined in part by when the credit contract was made, and by the purpose of the credit.

The consumers argued that the lenders could not take possession because they had not issued a notice as required by section 80 of the Code, which would have given them 30 days to rectify the default. The lenders agreed that a notice under section 80 had not been issued, but said that it was because the consumers had signed the declaration before entering the contract so the Code did not apply.

The consumers argued that the Code did apply because they had accepted the offer before the declaration was made. The consumers also relied on section 11(3) of the Code arguing that the declaration was ineffective because at the time it was made, the lenders had reason to believe that the credit was for personal, domestic or household purposes. The lenders maintained that the consumers had signed the declaration before entering the contract, so the declaration was valid.

In deciding whether the consumers had made the declaration prior to entering the contract, the Supreme Court stated that no credit contract exists until the consumer notifies the lenders that they have accepted. Because the declaration contained neither the date on which the declaration was signed, nor the date on which it was received by the credit provider, Justice Smart decided that there was no acceptable evidence to decide the issue. Justice Smart noted that the date and location that the loan documents were signed, and the income of the consumers were in the handwriting of someone other than the consumers, and concluded that the loan documents were completed after the consumers had signed the declaration.

Justice Smart concluded that the declaration did not comply with the Code and was invalid. His Honour came to that conclusion because: the agreement concerned credit generally rather than the specific type of credit envisaged by section 11(2) of the Code; the declaration was signed after acceptance of an early version of the mortgage; and the declaration was not dated as required by section 10(3) Consumer Credit Regulation 1995. His Honour further commented that the full significance of the business purpose declaration needed to be explained to the consumers, which would involve contrasting business or investment purposes with personal, domestic, or household purposes.

The Supreme Court then considered the purpose of the credit. His Honour stated that if in reality the transaction was for business as defined in section 6(1)(b) of the Code, then loan was not regulated by the Code. The lenders argued that the loan was not regulated by the Code because the credit was intended to be provided for business purposes and therefore was not consumer credit under the definition in section 6(1)(b).  The lenders argued that the test in section 6(1)(b) of the Code was what a reasonable person thought the money was for. The consumers argued they never had any intention of using the money for business purposes.

Justice Smart reiterated that the time to decide the purpose of the credit is when the contract is entered into, but noted that in determining the nature of the contract it is permissible to consider statements made and the events which occurred after the credit contract is entered into. Justice Smart opined that despite the declaration, the circumstances provided the lenders with reason to believe that the credit was for personal, domestic or household purposes. His Honour concluded that the bulk of the credit was being used to pay out the existing mortgage under which the defendants were in default. The lenders were aware of these matters. His Honour thought that the consumers’ lending history must have raised questions in the minds of the lenders.

His Honour concluded that having regard to the circumstances of the consumers, the credit provided was not used for business or investment purposes but to enable the consumers to stay in their home. His Honour decided that the substance and reality of the fourth loan was the provision of credit for personal, domestic or household purposes so the Code applied.

His Honour therefore concluded that the Supreme Court action was incorrectly instituted because the Code applied and a default notice was not given to the consumers. Justice Smart struck out the action, but pointed out that this did not mean the consumers were relieved of their obligation to repay the borrowed money and interest. His Honour allowed the lenders to recommence an action after they had served a default notice and 30 days had elapsed.

Decision

His Honour dismissed the matter and ordered the lenders to pay the costs.

Read the full text of this case on the Lawlink website.

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Keywords:  Sale of vehicle – conversion – breach of warranty – remedy – Sale of Goods Act 1923 – Motor Dealers Act 1974.

Background

Betta Caravans (“the dealer”) sold a caravan to the Mr and Mrs Baldock (“the consumers”) with a warranty. Viscount Caravans a division of RV Manufacturing Pty Ltd (“the manufacturer”) was the company that manufactured the caravan. After taking delivery of the caravan the consumers noticed problems with the fly screens and a crack in the ceiling (“the defects”).

The dealer referred the consumers to the manufacturer. The director of Viscount Caravans agreed to fix the defects, but said it would be expensive. The director of Viscount Caravans issued correspondence stating that if a good price could be obtained from selling the caravan then a replacement caravan would be given to the consumers. This letter was from Vehicle Assembly Pty Ltd and signed by the director of Viscount Caravans. The consumers later discovered that the caravan had disappeared and they were promised a replacement. The promises were not fulfilled.

The consumers lodged an application in the CTTT personally naming the director, the dealer, and Vehicle Assembly Pty Ltd which the consumer thought was the manufacturer, as the respondents. In the CTTT the parties agreed that the defects existed. The CTTT was satisfied that the defects in the caravan breached the ‘merchantable quality’ warranty implied into the sale contract by the Sale of Goods Act 1923.

The CTTT was also satisfied that the defects breached the ‘repair of defects’ warranty implied by the Motor Dealers Act 1974. In trying to determine who was responsible for rectifying the breach of warranty, the CTTT considered whether the persons and companies named in the application were the actual manufacturer. The CTTT concluded that the company named in the application was not the manufacturer so no orders for compensation against the manufacturer could be made. The CTTT ordered the dealer to pay compensation instead.

Appeal to Supreme Court

The dealer appealed to the Supreme Court on the grounds that the CTTT erred at law. The manufacturer did not appear at the appeal as it had not been served with a summons. In considering the appeal, Associate Justice Malpass commented that the application in the CTTT had been imprecise which caused difficulty and may have resulted in the unclear reasoning process. His Honour concluded that the CTTT's decision that the dealer was liable under the Motor Dealers Act 1974 was incorrect and did not apply because the parties had not raised it at the CTTT. Associate Justice Malpass decided that the CTTT had not sufficiently addressed the extent of the breach of the Sale of Goods Act warranty and his Honour was unsure how the CTTT arrived at the amount of compensation to be ordered.

His Honour said that this resulted in an error regarding the amount of compensation to be paid. His Honour reiterated that such a breach would normally only result in an order for compensation in an amount necessary to rectify the defects, not for loss of the vehicle.

Decision

The orders of the CTTT were set aside and the matter was remitted. The consumers were ordered to pay the costs.

Read the full text of this case on the Lawlink website.

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Keywords:  Tenancy agreement – condition of quiet peace and enjoyment – procedural fairness – opportunity to participate in proceedings – consequences of failure to participate – compensation – Section 32 Consumer, Trader and Tenancy Tribunal Act 2001 – Civil Liability Act 2002 – Residential Parks Act 1988.

Background

Blackington Pty Ltd (“the owner”) of Banora Point Caravan Park (“the park”) had caused or permitted a letter from Tweed Shire Council and a photograph (“the material”), to be affixed to the window of the park office. The material implied that one of the residents (“the resident”) was responsible for Tweed Shire Council refusing the park owner permission to continue operating the park. This had caused the resident to suffer threats and abuse from other residents. The resident made an application to the CTTT seeking an order that the owner remove the material which had been displayed in the window of the park office.

On the date of the hearing the matter was due to be heard at 3pm in the afternoon. The park owner’s secretary, and the park’s caretaker attended the CTTT in the morning and the Secretary asked for the hearing to commence early. The residents could not attend until 3pm so the CTTT refused the request. At 3pm there was no attendance by the park owner and the hearing commenced a short time later. The park caretaker entered the CTTT room during the hearing and provided some documents, but no one from the park participated in the hearing any further. The CTTT decided that the park owner was in breach of the residential tenancy agreement by causing interference with the peace and comfort of the resident. The CTTT ordered that the park owner remove the material, and after allowing an amendment to the application, ordered that the park owner pay compensation for the stress and anxiety caused by the breach.

Appeal to Supreme Court

The park owner appealed to the Supreme Court arguing that the CTTT had: denied him procedural fairness by amending the application without giving him an opportunity to answer; and erred by awarding compensation, which should have been determined by the Civil Liability Act 2002. The Supreme Court concluded that the park owner had not been denied procedural fairness, because he had a reasonable opportunity to participate in the hearing but decided to play a limited role. Associate Justice Malpass observed that if the park owner had participated in the hearing he would have been in a position to address the CTTT before the amendment was made. His Honour noted that CTTT is empowered to amend applications under section 32 of the Consumer, Trader and Tenancy Tribunal Act 2001, and has the power to order compensation for a breach of a residential tenancy agreement under section 16 of the Residential Tenancies Act 1989. His Honour was not satisfied that the Civil Liability Act 2002 applied.

Decision

The appeal was dismissed and the park owner ordered to pay the costs.

Read the full text of this case on the Lawlink website.

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Keywords:  Comprehensive Insurance Scheme – notifying the Building Securities Scheme within 6 months – failure to notify – discretion to extend time – threshold requirement – Section 67 Consumer, Trader and Tenancy Tribunal Act 2001 – Section 91 Building Services Corporation Act 1989.

Background

The Owners of Strata Plan 53094 (“the owners”) made claims to the Building Commission (“the Commission”) under the Comprehensive Insurance Scheme (“the scheme”) for leaking bathrooms. The claims were rejected by the Commission. The owners appealed to the CTTT. The CTTT dismissed the application on the basis that the owners had not notified the Commission of the claim in writing within 6 months as required by clause 7 of the scheme. The CTTT did not extend time to lodge a claim.

Appeal to Supreme Court

The owners appealed to the Supreme Court on the grounds that: there was no evidence that the owners had become aware of the defects within the 6 month reporting period; that the finding by the CTTT that the insurance company had been notified of the ‘claim’ after the time limit expired was irrelevant; and the CTTT erred in not extending the time to claim because it had misinterpreted the time limit clause.

The Supreme Court decided that the first ground of appeal was invalid as the owners were not appealing on a ground of law. Section 67 of the Consumer, Trader and Tenancy Tribunal Act 2001 allows a party to appeal on a pure question of ‘law’. The court decided that the owners were trying to appeal a finding of fact made by CTTT which is not permitted.

Justice Malpass agreed the CTTT had wrongly stated that the Commission was notified of the ‘claim’ after the time limit expired. His Honour reiterated that the clause requires a person making a claim under the scheme to notify the Commission of ‘the matters that could result in a claim’ within the 6 month time limit. His Honour decided that since the owners had failed to notify the Commission of the matters that could have resulted in a claim, there was no need to remit the CTTT's decision.

Justice Malpass did not accept that the CTTT had misinterpreted the time limit provision of the scheme. His Honour concluded that CTTT did not use its discretion to extend the time limit because it was not satisfied that the owners' failure to notify the Commission was due to circumstances outside their control.

Decision

The appeal was dismissed and the owners ordered to pay the costs of the appeal.

Read the full text of this case on the Lawlink website.

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Keywords:  Building contracts – insurance policy – intention of parties entering into the contract – building owners – Sections 9 to 13 Consumer Claims Act 1998 – Section 48 Home Building Act 1989.

Background

Mr and Mrs Tilley (“the first home owners”) purchased a property and entered into a contract with a builder (“the builder”) to demolish the structure on the property and build two town houses. A strata plan was created and Lot 1 was kept by the home owners, while Lot 2 was purchased by Mr and Mrs Lloyd (“the second home owners”).

The builder took out an insurance policy which required Allianz (“the insurer”) to cover the ‘building owner’ for loss or damage incurred through the residential building work during the policy period. The first and second home owners, and the strata corporation made a claim under the policy which was denied on the basis that the building contract had been entered into prior to the period of insurance.

The first and second home owners made an application in the CTTT. The insurer referred the CTTT to a similar case, Elizabeth Taylor v Dextra (sic) Corporation Ltd & Ors [2005] NSWSC 974. After considering the case the CTTT decided that because the building contract was entered into before the insurance policies were issued, and before the policy period that was specified in those policies, the insurer was entitled to deny the claim. The application was dismissed.

Appeal to Supreme Court

The home owners appealed to the Supreme Court where Justice Malpass decided that the CTTT had been led into error by relying on the Elizabeth Taylor decision. His Honour said that in the Supreme Court decision in the Elizabeth Taylor case was overturned by the Court of Appeal which decided that because the particular policy was not clear, the court had to consider the real intention of the parties. The court decided the policy in that case would cover a building contract that came into existence prior to its “period of insurance” provisions.

Justice Malpass said the case had to be referred back to the CTTT to determine the real intention of the parties at the time the insurance contract was entered into. There were further issues relating to the standing of the parties to the case that had to be determined by the CTTT.

Decision

The orders of the CTTT were set aside and the proceedings were remitted. The insurer was ordered to pay the costs.

Read the full text of this case on the Lawlink website.

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Keywords:  Appeal on matter of law – requirement and eligibility for owner builder permit – CTTT has jurisdiction where builder unlicensed – consumer protection – Section 29 Home Building Act 1989.

Background

Mr Donnelly and Ms da Bentvelzen, and Mr and Mrs Sorbello (“the home owners”) had purchased properties from Mr and Mrs Whan (“the owner-builders”). The pump out systems on each of the properties stopped working and the home owners applied to the CTTT seeking compensation for breach of the warranties. The CTTT decided that since the owner-builder was unlicensed, and ineligible for a licence, it did not have jurisdiction and dismissed the applications.

Appeal to Supreme Court

The home owners appealed to the Supreme Court on the basis that the CTTT made an error of law in deciding that the owner-builder would not have been eligible for a permit. The owner-builders argued that the Tribunal was correct in finding that the owner-builder could never have obtained a licence and therefore the CTTT had no jurisdiction.

Justice Price reviewed the evidence in the CTTT and concluded the owner builders may have been entitled to a permit under theHome Building Act 1989 (“the Act”). His Honour opined that the facts were capable of satisfying the Director-General of Fair Trading that a single-house on each lot would be occupied as the residence of the home owners after the work was done, and was therefore capable of being owner-builder work under section 29 of the Act. His Honour decided that the CTTT erred in law in deciding that the definition of owner-builder required eligibility for a permit, and wrongly concluded that the Director-General of Fair Trading would have been required to reject any application for a building permit by the owner builders.

Justice Price remarked that the need for consumer protection in these circumstances is obvious, and an interpretation of the owner-builder which requires the applicant to be eligible for a permit would lead to unintended consequences. His Honour decided that the CTTT had jurisdiction to make the orders sought by the home owners.

Decision

The orders of the CTTT were set aside and the matter was remitted. The owner builders were ordered to pay the costs of the appeal.

Read the full text of this case on the Lawlink website.

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