Chand v Lifestyle Homes NSW* Pty Ltd [2009] NSWDC 335

Chand v Lifestyle Homes NSW* Pty Ltd [2009] NSWDC 335

The appeal failed because the pleaded grounds did not establish any question with respect to a matter of law within s 67(1) of the Consumer, Trader and Tenancy Tribunal Act 2001. The procedural fairness complaints were, if available at all, matters for judicial review under s 65 rather than this statutory appeal. The complaints about valuation, mitigation, repudiation and delay either challenged findings of fact or failed to show any misapplication of legal principle by the Tribunal. Unpleaded complaints about procedural directions were not considered.

Jurisdiction
Australia
Judgment Date
14 December 2009
Procedural Posture
Civil Appeal From a Decision of the Consumer, Trader and Tenancy Tribunal, Home Building Division / District Court Determination of Appeal Under S 67(1) of the Consumer, Trader and Tenancy Tribunal Act 2001
Outcome
Appeal dismissed.
Legal Topics
['appeal on a Question With Respect to a Matter of Law' 'procedural Fairness' 'judicial Review and Prerogative Relief' 'repudiation of Building Contract' 'mitigation of Damages' 'expert Evidence' 'costs']
['civil Procedure' 'administrative Law' 'home Building' 'contract Law'] ['appeal on a Question With Respect to a Matter of Law' 'procedural Fairness' 'judicial Review and Prerogative Relief' 'repudiation of Building Contract' 'mitigation of Damages' 'expert Evidence' 'costs']

Case Brief

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Procedural Posture

Civil Appeal From a Decision of the Consumer, Trader and Tenancy Tribunal, Home Building Division / District Court Determination of Appeal Under S 67(1) of the Consumer, Trader and Tenancy Tribunal Act 2001

Legal Issues

  1. 1 ['Whether the appeal grounds raised questions with respect to a matter of law within s 67(1) of the Consumer, Trader and Tenancy Tribunal Act 2001.' 'Whether alleged denials of procedural fairness concerning exclusion of Mrs Chand and treatment of the ACP report were available on a s 67(1) appeal or only by judicial review under s 65.' 'Whether the Tribunal made an appellable error in finding a fair estimate of the total cost of the house was $950,000.' "Whether the Tribunal failed to consider mitigation when assessing the builder's loss of profits." 'Whether the Tribunal erred in finding that the owners repudiated the contract without considering statutory warranties or delay.' 'Whether complaints not pleaded as grounds of appeal could be considered.']

Ratio Decidendi

The appeal failed because the pleaded grounds did not establish any question with respect to a matter of law within s 67(1) of the Consumer, Trader and Tenancy Tribunal Act 2001. The procedural fairness complaints were, if available at all, matters for judicial review under s 65 rather than this statutory appeal. The complaints about valuation, mitigation, repudiation and delay either challenged findings of fact or failed to show any misapplication of legal principle by the Tribunal. Unpleaded complaints about procedural directions were not considered.

Court Disposition

Appeal dismissed.

Orders

  • ['The appeal is dismissed.' "The plaintiffs are to pay the third defendant's costs of the proceedings, liability for which to be on a joint and several basis." 'The first and second defendants are to bear their own costs of the proceedings.' 'Note the intended submitting appearance of the first defendant, save as to...