Tom v Jenkins [2019] NSWCATAP 74

Tom v Jenkins [2019] NSWCATAP 74

Although the Builder was denied procedural fairness because the Tribunal relied on s 48K(3) without hearing submissions, that denial was addressed by the Appeal Panel considering the fully developed submissions on appeal. The indemnity claim was a building claim relating to building goods or services supplied in connection with construction of the House and was captured by s 48K(3) of the Home Building Act 1989 (NSW). It was of no consequence that the geotechnical classification and structural drawings were not provided to the Builder, because the Builder supplied the Engineer's structural drawings by constructing the House. Section 48K(7) did not apply because the Builder's claim against...

Jurisdiction
Australia
Judgment Date
02 April 2019
Procedural Posture
Appeal From a Civil and Administrative Tribunal Consumer and Commercial Division Decision Dismissing a Builder's Indemnity Claim Against an Engineer / Appeal Panel Determination of Application to Extend Time and Appeal
Outcome
Leave to extend time granted; appeal dismissed; appellant ordered to pay respondent's costs of the appeal on the ordinary basis as agreed or assessed.
Legal Topics
['extension of Time to Appeal' 'procedural Fairness' 'ncat Jurisdiction Over Building Claims' 'home Building Act Limitation Provisions' "builder's Indemnity Claim Against Engineer" 'negligence and Misleading Conduct']
['administrative Law' 'building and Construction' 'consumer Law' 'civil Procedure'] ['extension of Time to Appeal' 'procedural Fairness' 'ncat Jurisdiction Over Building Claims' 'home Building Act Limitation Provisions' "builder's Indemnity Claim Against Engineer" 'negligence and Misleading Conduct']

Case Brief

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Procedural Posture

Appeal From a Civil and Administrative Tribunal Consumer and Commercial Division Decision Dismissing a Builder's Indemnity Claim Against an Engineer / Appeal Panel Determination of Application to Extend Time and Appeal

Legal Issues

  1. 1 ['Whether time should be extended for the Builder to file the Notice of Appeal three days out of time.' 'Whether the Builder was denied procedural fairness because the Tribunal dismissed the indemnity claim under s 48K(3) of the Home Building Act 1989 (NSW) without giving the Builder an opportunity to make submissions on that provision.' "Whether the Builder's indemnity claim relating to the Engineer's site classification and structural drawings was captured by s 48K(3) of the Home Building Act 1989 (NSW), depriving the Tribunal of jurisdiction." "Whether the seven-year limitation provision in s 48K(7) of the Home Building Act 1989 (NSW) applied to the Builder's claim for indemnity based on alleged negligence and misleading conduct."]

Ratio Decidendi

Although the Builder was denied procedural fairness because the Tribunal relied on s 48K(3) without hearing submissions, that denial was addressed by the Appeal Panel considering the fully developed submissions on appeal. The indemnity claim was a building claim relating to building goods or services supplied in connection with construction of the House and was captured by s 48K(3) of the Home Building Act 1989 (NSW). It was of no consequence that the geotechnical classification and structural drawings were not provided to the Builder, because the Builder supplied the Engineer's structural drawings by constructing the House. Section 48K(7) did not apply because the Builder's claim against...

Court Disposition

Leave to extend time granted; appeal dismissed; appellant ordered to pay respondent's costs of the appeal on the ordinary basis as agreed or assessed.

Orders

  • ['Leave is granted to extend time to file the Notice of Appeal to 13 April 2018.' 'Appeal dismissed.' "The appellant is to pay the respondent's costs of this Appeal on the ordinary basis as agreed or as assessed in accordance with the applicable costs assessment legislation."]