Quigg v O’Leary trading as Building Habitats [2018] NSWCATAP 298

Quigg v O’Leary trading as Building Habitats [2018] NSWCATAP 298

The Appeal Panel extended time because the delay was very short and caused no prejudice, but refused leave and dismissed the appeal because no error of law or basis for leave was established. The evidence, including the Peak Consulting report and the fact that the owners separately contracted with the builder, waterproofer and tiler, supported the Tribunal's conclusion that the fundamental problem was scheduling and programming of the works and that the owners were responsible for arranging second stage waterproofing. The Tribunal's decision was not shown to be unfair, against the weight of evidence, affected by significant new evidence, or biased. The second respondent's costs...

Jurisdiction
Australia
Judgment Date
13 December 2018
Procedural Posture
Internal Appeal Under S 80(2) of the Civil and Administrative Tribunal Act 2013 Against a Consumer and Commercial Division Home Building Decision / Appeal Panel Decision on Extension of Time, Leave to Appeal, Appeal and Costs
Outcome
Time to lodge the appeal was extended; leave to appeal was refused; the appeal was dismissed; the second respondent's costs application was refused.
Legal Topics
['home Building Warranties' 'waterproofing Failure' 'separate Contracts With Builder, Waterproofer and Tiler' 'leave to Appeal' 'questions of Law' 'adequacy of Reasons' 'weight of Evidence' 'new Evidence' 'extension of Time' 'special Circumstances for Costs']
['building and Construction' 'home Building' 'civil and Administrative Tribunal Procedure' 'appeals' 'costs'] ['home Building Warranties' 'waterproofing Failure' 'separate Contracts With Builder, Waterproofer and Tiler' 'leave to Appeal' 'questions of Law' 'adequacy of Reasons' 'weight of Evidence' 'new Evidence' 'extension of Time' 'special Circumstances for Costs']

Case Brief

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Procedural Posture

Internal Appeal Under S 80(2) of the Civil and Administrative Tribunal Act 2013 Against a Consumer and Commercial Division Home Building Decision / Appeal Panel Decision on Extension of Time, Leave to Appeal, Appeal and Costs

Legal Issues

  1. 1 ['Whether time to lodge the appeal should be extended.' 'Whether the Tribunal made an error of law, including by giving inadequate reasons or acting with bias.' 'Whether leave to appeal should be granted on the basis that the decision was not fair and equitable, was against the weight of evidence, or significant new evidence had arisen.' 'Whether the owners or the builder were responsible for arranging second stage waterproofing after the balustrade posts penetrated the waterproofing membrane.' 'Whether special circumstances warranted a costs order in favour of the second respondent.']

Ratio Decidendi

The Appeal Panel extended time because the delay was very short and caused no prejudice, but refused leave and dismissed the appeal because no error of law or basis for leave was established. The evidence, including the Peak Consulting report and the fact that the owners separately contracted with the builder, waterproofer and tiler, supported the Tribunal's conclusion that the fundamental problem was scheduling and programming of the works and that the owners were responsible for arranging second stage waterproofing. The Tribunal's decision was not shown to be unfair, against the weight of evidence, affected by significant new evidence, or biased. The second respondent's costs...

Court Disposition

Time to lodge the appeal was extended; leave to appeal was refused; the appeal was dismissed; the second respondent's costs application was refused.

Orders

  • ['Time to lodge the appeal is extended to 30 May 2018.' 'Leave to appeal is refused.' 'The appeal is dismissed.' "The second respondent's costs application is refused."]