A Sussman Construction v Ireland & Ors [2003] NSWSC 790

A Sussman Construction v Ireland & Ors [2003] NSWSC 790

The summons was dismissed because the challenge was out of time and incompetent, the plaintiff failed to sufficiently explain the delay, and in any event the proposed appeal was futile and devoid of merit: the procedural fairness complaints were untenable, the plaintiff had not shown that the amendment arguments were put to the Tribunal, there was no cross-claim before the Tribunal seeking quantum meruit relief under s 94 of the Home Building Act 1989, and the arguments did not involve a question with respect to a matter of law under s 67 of the Consumer, Trader and Tenancy Tribunal Act 2001.

Jurisdiction
Australia
Judgment Date
28 August 2003
Procedural Posture
Summons Challenging Consumer, Trader and Tenancy Tribunal Order and Refusal of Rehearing / Out of Time Appeal Requiring Extension of Time
Outcome
The Summons is dismissed.
Legal Topics
['incompetent Appeal' 'extension of Time' 'procedural Fairness' 'error of Law' 'home Building Contracts' 'home Owners Warranty Insurance' 'quantum Meruit' 'rehearing Application']
['administrative Law' 'consumer Law' 'home Building Law' 'civil Procedure'] ['incompetent Appeal' 'extension of Time' 'procedural Fairness' 'error of Law' 'home Building Contracts' 'home Owners Warranty Insurance' 'quantum Meruit' 'rehearing Application']

Case Brief

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Procedural Posture

Summons Challenging Consumer, Trader and Tenancy Tribunal Order and Refusal of Rehearing / Out of Time Appeal Requiring Extension of Time

Legal Issues

  1. 1 ['Whether the out-of-time challenge to the Tribunal order and refusal of rehearing should be permitted by an extension of time.' 'Whether the plaintiff was denied procedural fairness before the Tribunal.' 'Whether the Tribunal made an error of law concerning the Home Building Act 1989 and amendments introduced by the Home Building Legislation Amendment Act 2001.' 'Whether any proposed appeal involved the deciding of a question with respect to a matter of law within s 67 of the Consumer, Trader and Tenancy Tribunal Act 2001.' 'Whether the proposed challenge was futile or devoid of merit.']

Ratio Decidendi

The summons was dismissed because the challenge was out of time and incompetent, the plaintiff failed to sufficiently explain the delay, and in any event the proposed appeal was futile and devoid of merit: the procedural fairness complaints were untenable, the plaintiff had not shown that the amendment arguments were put to the Tribunal, there was no cross-claim before the Tribunal seeking quantum meruit relief under s 94 of the Home Building Act 1989, and the arguments did not involve a question with respect to a matter of law under s 67 of the Consumer, Trader and Tenancy Tribunal Act 2001.

Court Disposition

The Summons is dismissed.

Orders

  • ['The Summons is dismissed.' 'If the first and second defendants have incurred legal costs in respect of this appeal, the plaintiff is to pay those costs.']