Fair Trading Administration Corporation v Tebbutt and Anor [2003] NSWSC 340

Fair Trading Administration Corporation v Tebbutt and Anor [2003] NSWSC 340

The Tribunal was validly seized of Mr Tebbutt's appeal because the Corporation's refusal to indemnify still stood and the BSC Act appeal process allowed the Tribunal to determine the matter afresh. However, the Tribunal exceeded its power because the BSC Insurance Scheme authorised indemnity for losses incurred in...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
24 April 2003
Procedural Posture
Appeal on a Question of Law From a Decision of the Fair Trading Tribunal of New South Wales Pursuant to S.61(1) of the Fair Trading Tribunal Act 1998 (nsw) / Supreme Court Appeal; Equity Division
Outcome
Appeal allowed; Orders 1 and 2 of the Tribunal made on 23 August 2002 set aside; proceedings remitted to the Tribunal for determination in accordance with law.
Legal Topics
['fair Trading Tribunal Jurisdiction' 'building Services Corporation Comprehensive Insurance Scheme' 'indemnity for Defective Residential Building Work' 'meaning of Losses Reasonably Incurred' 'tribunal Power on Appeal Under the Building Services Corporation Act 1989 (nsw)']
['administrative Law' 'building and Construction' 'insurance' 'statutory Construction'] ['fair Trading Tribunal Jurisdiction' 'building Services Corporation Comprehensive Insurance Scheme' 'indemnity for Defective Residential Building Work' 'meaning of Losses Reasonably Incurred' 'tribunal Power on Appeal Under the Building Services Corporation Act 1989 (nsw)']

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Procedural Posture

Appeal on a Question of Law From a Decision of the Fair Trading Tribunal of New South Wales Pursuant to S.61(1) of the Fair Trading Tribunal Act 1998 (nsw) / Supreme Court Appeal; Equity Division

Legal Issues

  1. 1 ["Whether the Tribunal had jurisdiction to determine Mr Tebbutt's appeal from the Corporation's refusal to indemnify him under the BSC Insurance Scheme." "Whether the Tribunal's order requiring the Corporation to pay $100,000 directly to Mr Tebbutt was authorised by the BSC Act and the BSC Insurance Scheme." "Whether the Corporation's liability under clause 5(1)(d) of the BSC Insurance Scheme arose before Mr Tebbutt had paid, or incurred a contractual obligation to pay, costs of rectification work."]

Ratio Decidendi

The Tribunal was validly seized of Mr Tebbutt's appeal because the Corporation's refusal to indemnify still stood and the BSC Act appeal process allowed the Tribunal to determine the matter afresh. However, the Tribunal exceeded its power because the BSC Insurance Scheme authorised indemnity for losses incurred in rectifying defects only where the beneficiary had paid rectification costs or incurred a contractual obligation to pay them. Since Mr Tebbutt had not entered into a rectification contract or incurred any such expense or obligation, the Tribunal could not order unconditional payment of $100,000 to him merely subject to a later requirement that he spend it on remedial works.

Court Disposition

Appeal allowed; Orders 1 and 2 of the Tribunal made on 23 August 2002 set aside; proceedings remitted to the Tribunal for determination in accordance with law.

Orders

  • ['The appeal is allowed.' 'Orders 1 and 2 of the Tribunal made on 23 August 2002 are set aside.' 'The proceedings are remitted to the Tribunal for determination in accordance with law.']