Krslovic Homes v Timothy Sparkes & Ors [2004] NSWSC 374

Krslovic Homes v Timothy Sparkes & Ors [2004] NSWSC 374

Orders made on 7 February 2003 were void because Mr Baker was not a member of the Tribunal and had no authority to determine the matter; accordingly, there was no valid decision, and a declaration is properly granted. The matter is in the nature of an appeal within the meaning of the Suitors' Fund Act, allowing indemnity certificates to be granted. It is inappropriate, on the authorities and facts, to order costs against the Tribunal or between parties; each party should bear its own costs.

Parties
Plaintiff: Krslovic Homes Pty Ltd; Plaintiff's Counsel: Mr Bellamy; First Defendant: Timothy Nigel Sparkes; Second Defendant: Sarah Elisabeth Sparkes; Solicitor for First & Second Defendants: Stephen Miller; Third Defendant: Consumer Trader & Tenancy Tribunal; Solicitor for Third Defendant: Crown Solicitor's Office
Jurisdiction
Australia
Judgment Date
05 May 2004
Procedural Posture
Application for Declaratory Relief (in Nature of Appeal) / Judgment at First Instance in Supreme Court of New South Wales
Outcome
Declaration that the orders made by the Tribunal on 7 February 2003 are void and of no effect. Each party to pay their own costs. Indemnity certificates to be granted. Proceedings determined accordingly. Liberty to apply granted.
Legal Topics
Costs, Declaratory Relief, Jurisdictional Error, Suitors' Fund Act, Tribunal Powers, Natural Justice
Administrative Law Costs Declaratory Relief Jurisdictional Error Suitors' Fund Act Tribunal Powers Natural Justice

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Parties

Krslovic Homes Pty Ltd

Plaintiff

Mr Bellamy

Plaintiff's Counsel

Timothy Nigel Sparkes

First Defendant

Sarah Elisabeth Sparkes

Second Defendant

Stephen Miller

Solicitor for First & Second Defendants

Consumer Trader & Tenancy Tribunal

Third Defendant

Crown Solicitor's Office

Solicitor for Third Defendant

Procedural Posture

Application for Declaratory Relief (in Nature of Appeal) / Judgment at First Instance in Supreme Court of New South Wales

Legal Issues

  1. 1 Whether orders made by Mr Baker on 7 February 2003 were valid
  2. 2 Whether Tribunal or parties should be liable for costs
  3. 3 Whether proceedings are in the nature of an appeal for Suitors' Fund Act purposes

Ratio Decidendi

Orders made on 7 February 2003 were void because Mr Baker was not a member of the Tribunal and had no authority to determine the matter; accordingly, there was no valid decision, and a declaration is properly granted. The matter is in the nature of an appeal within the meaning of the Suitors' Fund Act, allowing indemnity certificates to be granted. It is inappropriate, on the authorities and facts, to order costs against the Tribunal or between parties; each party should bear its own costs.

Court Disposition

Declaration that the orders made by the Tribunal on 7 February 2003 are void and of no effect. Each party to pay their own costs. Indemnity certificates to be granted. Proceedings determined accordingly. Liberty to apply granted.

Orders

  • A declaration is made that the orders made by the third defendant on 7 February 2003 are void and of no effect.
  • Each party shall pay their own costs of these proceedings.