Sorbello & Donnelly v Whan [2007] NSWSC 951

Sorbello & Donnelly v Whan [2007] NSWSC 951

The Tribunal Member erred in law by importing into the definition of 'owner-builder' a requirement of eligibility for an owner-builder permit and concluding Mrs Whan was ineligible; the primary facts found did not necessarily require rejection of an owner-builder permit application; procedural fairness was not denied; the Tribunal had jurisdiction; as further issues remain undetermined, decisions on the questions subject of appeal are remitted and re-hearings ordered.

Parties
Plaintiff: Michael Sorbello & Sarah Sorbello; Plaintiff: Troy Wayne Donnelly & Belinda Bentvelzen; First Defendant: Elizabeth Whan; Second Defendant: Consumer, Trader and Tenancy Tribunal of New South Wales; Third Defendant: Gary Whan
Jurisdiction
Australia
Judgment Date
29 August 2007
Procedural Posture
Appeal / Judgment on Appeal From Tribunal and Orders Made
Outcome
Appeals allowed; decisions on questions remitted and re-hearings ordered; first and third defendants to pay costs of plaintiffs.
Legal Topics
Statutory Interpretation, Owner Builder Definition, Jurisdiction of Tribunal, Statutory Warranties, Procedural Fairness
Administrative Law Building and Construction Law Consumer Law Statutory Interpretation Owner Builder Definition Jurisdiction of Tribunal Statutory Warranties Procedural Fairness

Case Brief

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Parties

Michael Sorbello & Sarah Sorbello

Plaintiff

Troy Wayne Donnelly & Belinda Bentvelzen

Plaintiff

Elizabeth Whan

First Defendant

Consumer, Trader and Tenancy Tribunal of New South Wales

Second Defendant

Gary Whan

Third Defendant

Procedural Posture

Appeal / Judgment on Appeal From Tribunal and Orders Made

Legal Issues

  1. 1 Whether Mrs Whan was an 'owner-builder' for the purposes of the Home Building Act 1989
  2. 2 Whether the Consumer, Trader and Tenancy Tribunal had jurisdiction to make the orders sought
  3. 3 Whether procedural fairness was afforded to the plaintiffs

Ratio Decidendi

The Tribunal Member erred in law by importing into the definition of 'owner-builder' a requirement of eligibility for an owner-builder permit and concluding Mrs Whan was ineligible; the primary facts found did not necessarily require rejection of an owner-builder permit application; procedural fairness was not denied; the Tribunal had jurisdiction; as further issues remain undetermined, decisions on the questions subject of appeal are remitted and re-hearings ordered.

Court Disposition

Appeals allowed; decisions on questions remitted and re-hearings ordered; first and third defendants to pay costs of plaintiffs.

Orders

  • Decisions on the questions subject of each appeal remitted to the Consumer, Trader and Tenancy Tribunal
  • Re-hearing of each of the proceedings by the Tribunal ordered