3D Design & Build Pty Ltd v Kay [2017] NSWCATAP 110

3D Design & Build Pty Ltd v Kay [2017] NSWCATAP 110

Leave to appeal was refused and the appeal dismissed because the builder identified no error of law, the Tribunal's findings that items 5.1.3, 5.1.6 and 5.1.7 had not been completed were open on the evidence, the evidence did not preponderate so strongly against those findings as to make them objectively...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
17 May 2017
Procedural Posture
Internal Appeal in Home Building Renewal Proceedings / Appeal Panel Decision on Application for Leave to Appeal
Outcome
Leave to appeal refused; appeal dismissed.
Legal Topics
['internal Appeal' 'home Building Act Renewal Proceedings' 'rectification Works' 'weight of Evidence' 'fresh Evidence' 'leave to Appeal']
['administrative Law' 'home Building' 'civil Procedure'] ['internal Appeal' 'home Building Act Renewal Proceedings' 'rectification Works' 'weight of Evidence' 'fresh Evidence' 'leave to Appeal']

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Procedural Posture

Internal Appeal in Home Building Renewal Proceedings / Appeal Panel Decision on Application for Leave to Appeal

Legal Issues

  1. 1 ['Whether the builder should be granted leave to appeal from findings that it had not complied with items 5.1.3, 5.1.6 and 5.1.7 of the work orders made on 30 January 2015.' "Whether the Tribunal's findings about the rectification works were against the weight of the evidence." 'Whether significant new evidence had arisen that was not reasonably available when the proceedings under appeal were dealt with.' "Whether the home owner's report dated 22 December 2016 should be admitted on appeal."]

Ratio Decidendi

Leave to appeal was refused and the appeal dismissed because the builder identified no error of law, the Tribunal's findings that items 5.1.3, 5.1.6 and 5.1.7 had not been completed were open on the evidence, the evidence did not preponderate so strongly against those findings as to make them objectively unreasonable, and the builder did not establish significant new evidence that was not reasonably available during the proceedings below. The home owner's 22 December 2016 report was also not admitted because it post-dated the hearing below and could not have produced a different result in respect of the Tribunal's decision at that time.

Court Disposition

Leave to appeal refused; appeal dismissed.

Orders

  • ['The appeal is dismissed.']