Rauf v Vartanian; Vartanian v Rauf [2023] NSWCATAP 238

Rauf v Vartanian; Vartanian v Rauf [2023] NSWCATAP 238

The Tribunal did not deny procedural fairness because, despite a guided and practical hearing process and limited time, each party had a reasonable opportunity to explain their case and the Member maintained impartiality. However, the award of $10,000 was against the weight of the evidence because the only paid invoice for completed rectification work was Freddy's Project Group invoice no. 01001685 for $8,450, which reflected the proper measure of the Homeowner's proved loss. The Builder's $6,000 claim was not established because there was no adequate evidence, compliant contract, or quantum meruit proof supporting that amount. The Homeowner did not establish error of law or significant...

Jurisdiction
Australia
Judgment Date
23 August 2023
Procedural Posture
Internal Appeals From a Consumer and Commercial Division Home Building Decision / Appeal Panel Decision on Appeals and Applications for Leave to Appeal
Outcome
In 2023/00115571 the Builder's appeal was allowed, Order 1 made in HB 22/53342 on 29 March 2023 was set aside, and a substituted order was made requiring Anmar Rauf to pay Emil Vartanian $8,450 immediately. In 2023/00139085 leave to appeal was refused and the Homeowner's appeal was dismissed.
Legal Topics
['defective and Incomplete Building Work' 'unlicensed Building Work' 'procedural Fairness' 'leave to Appeal' 'appeal on a Question of Law' 'decision Against the Weight of Evidence' 'fresh or New Evidence' 'assessment of Damages']
['building and Construction' 'home Building' 'administrative Law' 'civil Procedure'] ['defective and Incomplete Building Work' 'unlicensed Building Work' 'procedural Fairness' 'leave to Appeal' 'appeal on a Question of Law' 'decision Against the Weight of Evidence' 'fresh or New Evidence' 'assessment of Damages']

Case Brief

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Procedural Posture

Internal Appeals From a Consumer and Commercial Division Home Building Decision / Appeal Panel Decision on Appeals and Applications for Leave to Appeal

Legal Issues

  1. 1 ['Whether the Tribunal denied the Builder procedural fairness by not giving him a reasonable opportunity to present his case or have his claim for $6,000 considered.' "Whether the Tribunal's award of $10,000 to the Homeowner was against the weight of the evidence." 'Whether the Builder established a claim to payment of $6,000.' 'Whether the Homeowner demonstrated an error of law or grounds for leave to appeal based on alleged undervaluation of his loss or significant new evidence.' 'Whether a new decision should be substituted based on the evidence of rectification costs.']

Ratio Decidendi

The Tribunal did not deny procedural fairness because, despite a guided and practical hearing process and limited time, each party had a reasonable opportunity to explain their case and the Member maintained impartiality. However, the award of $10,000 was against the weight of the evidence because the only paid invoice for completed rectification work was Freddy's Project Group invoice no. 01001685 for $8,450, which reflected the proper measure of the Homeowner's proved loss. The Builder's $6,000 claim was not established because there was no adequate evidence, compliant contract, or quantum meruit proof supporting that amount. The Homeowner did not establish error of law or significant...

Court Disposition

In 2023/00115571 the Builder's appeal was allowed, Order 1 made in HB 22/53342 on 29 March 2023 was set aside, and a substituted order was made requiring Anmar Rauf to pay Emil Vartanian $8,450 immediately. In 2023/00139085 leave to appeal was refused and the Homeowner's appeal was dismissed.

Orders

  • ['2023/00115571: The appeal is allowed.' '2023/00115571: Order 1 made in HB 22/53342 on 29 March 2023 is set aside.' '2023/00115571: In lieu thereof the Appeal Panel makes the following order. Anmar Rauf is to pay Emil Vartanian the sum of $8,450 immediately.' '2023/00139085: Leave to appeal is refused.'...