Merheb v Hilal & Anor [2004] NSWSC 425

Merheb v Hilal & Anor [2004] NSWSC 425

The delay in filing the appeal was explained by counsel's typographical error and was not opposed, so an extension of time was granted. However, the Tribunal had a wide discretion under s 94(1A) when deciding whether it was just and equitable to permit quantum meruit recovery. It was open to the Tribunal to consider the plaintiff's overall conduct, particularly the failure to obtain home warranty insurance and the absence of a written contract, and to refuse to exercise the discretion in the plaintiff's favour. No error of law was shown, so the CTTT decision and orders were affirmed and the appeal and summons were dismissed.

Jurisdiction
Australia
Judgment Date
24 May 2004
Procedural Posture
Appeal From Decision of the Consumer Trader and Tenancy Tribunal Under S 67(1) of the Consumer Trader and Tenancy Act 2001 (nsw) Concerning S 94 of the Home Building Act 1989 (nsw) / Judgment on Application to Extend Time and Appeal From CTTT Decision
Outcome
Appeal dismissed; CTTT decision and orders affirmed; plaintiff's summons dismissed; plaintiff to pay the first defendant's costs as agreed or assessed.
Legal Topics
['appeal From Consumer Trader and Tenancy Tribunal' 'home Warranty Insurance' 'uninsured Residential Building Work' 'quantum Meruit' 'just and Equitable Discretion Under S 94(1 A)' 'extension of Time' 'costs']
['administrative Law' 'home Building' 'building and Construction' 'civil Procedure'] ['appeal From Consumer Trader and Tenancy Tribunal' 'home Warranty Insurance' 'uninsured Residential Building Work' 'quantum Meruit' 'just and Equitable Discretion Under S 94(1 A)' 'extension of Time' 'costs']

Case Brief

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Procedural Posture

Appeal From Decision of the Consumer Trader and Tenancy Tribunal Under S 67(1) of the Consumer Trader and Tenancy Act 2001 (nsw) Concerning S 94 of the Home Building Act 1989 (nsw) / Judgment on Application to Extend Time and Appeal From CTTT Decision

Legal Issues

  1. 1 ['Whether time to file the appeal should be extended under Part 51A of the Supreme Court Rules 1970 (NSW).' 'Whether the CTTT erred in refusing to exercise the discretion under s 94(1A) of the Home Building Act 1989 (NSW) to permit the plaintiff to recover on a quantum meruit basis despite failure to obtain the required insurance.' 'Whether the Tribunal took irrelevant considerations into account, including the absence of insurance and the absence of a written contract.' 'Whether the Tribunal erred in failing to make a costs order in favour of the plaintiff under s 53(3)(b) of the Consumer Trader and Tenancy Act 2001 (NSW).']

Ratio Decidendi

The delay in filing the appeal was explained by counsel's typographical error and was not opposed, so an extension of time was granted. However, the Tribunal had a wide discretion under s 94(1A) when deciding whether it was just and equitable to permit quantum meruit recovery. It was open to the Tribunal to consider the plaintiff's overall conduct, particularly the failure to obtain home warranty insurance and the absence of a written contract, and to refuse to exercise the discretion in the plaintiff's favour. No error of law was shown, so the CTTT decision and orders were affirmed and the appeal and summons were dismissed.

Court Disposition

Appeal dismissed; CTTT decision and orders affirmed; plaintiff's summons dismissed; plaintiff to pay the first defendant's costs as agreed or assessed.

Orders

  • ['The decision and orders made by the CTTT on 6 November 2003 are affirmed.' 'The appeal is dismissed.' "The plaintiff's summons filed 6 January 2004 is dismissed." "The plaintiff is to pay the defendant's costs as agreed or assessed."]