Da Wei Plastering (NSW) Pty Ltd v Salanitro-Chafei [2016] NSWCATAP 39

Da Wei Plastering (NSW) Pty Ltd v Salanitro-Chafei [2016] NSWCATAP 39

The Tribunal Member erred in law, or alternatively made a decision that was not fair and equitable, by dismissing the Builder's claim without adequately considering the agreement under which the work was performed, the contract price, the work agreed and completed, and the Builder's entitlement to payment. The Tribunal Member also erred in assessing the Owner's damages because the award for rectification and completion did not make allowance for the unpaid portion of the contract price; damages should reflect only the Owner's loss after accounting for amounts not yet paid under the contract.

Jurisdiction
Australia
Judgment Date
16 February 2016
Procedural Posture
Appeal From Consumer and Commercial Division Home Building Proceedings Under the Home Building Act 1989 (nsw) / Appeal Panel Decision on Leave to Appeal and Appeal
Outcome
Leave to appeal granted if necessary; appeal upheld for proceeding HB 15/41988; appeal upheld in part for proceeding HB 15/46471; dismissal and payment orders set aside; proceedings remitted to the Consumer and Commercial Division differently constituted.
Legal Topics
['defective and Incomplete Work' 'assessment of Damages' 'leave to Appeal' 'substantial Miscarriage of Justice' 'remittal for Rehearing']
['home Building' 'contract Law' 'civil Procedure' 'damages'] ['defective and Incomplete Work' 'assessment of Damages' 'leave to Appeal' 'substantial Miscarriage of Justice' 'remittal for Rehearing']

Case Brief

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Procedural Posture

Appeal From Consumer and Commercial Division Home Building Proceedings Under the Home Building Act 1989 (nsw) / Appeal Panel Decision on Leave to Appeal and Appeal

Legal Issues

  1. 1 ['Whether leave to appeal should be granted under s80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) and clause 12(1) of Schedule 4.' "Whether the Tribunal Member erred by dismissing the Builder's claim without determining the agreement, the contract price, and the Builder's entitlement to payment for work performed." 'Whether damages awarded to the Owner for defective and incomplete work should have allowed for the unpaid portion of the contract price.' 'Whether alleged procedural unfairness, inability to cross-examine, interpreter issues, and reliance on the QLZ Pty Ltd report justified allowing the appeal.']

Ratio Decidendi

The Tribunal Member erred in law, or alternatively made a decision that was not fair and equitable, by dismissing the Builder's claim without adequately considering the agreement under which the work was performed, the contract price, the work agreed and completed, and the Builder's entitlement to payment. The Tribunal Member also erred in assessing the Owner's damages because the award for rectification and completion did not make allowance for the unpaid portion of the contract price; damages should reflect only the Owner's loss after accounting for amounts not yet paid under the contract.

Court Disposition

Leave to appeal granted if necessary; appeal upheld for proceeding HB 15/41988; appeal upheld in part for proceeding HB 15/46471; dismissal and payment orders set aside; proceedings remitted to the Consumer and Commercial Division differently constituted.

Orders

  • ['In respect of proceedings HB 15/41988, leave to appeal is granted, if necessary.' 'In respect of proceedings HB 15/41988, the appeal is upheld.' 'In respect of proceedings HB 15/41988, the order for dismissal of the proceedings is set aside.' 'In respect of proceedings HB 15/41988, the proceedings are remitted to...