Akbarian v Stibilj [2020] NSWCATAP 1

Akbarian v Stibilj [2020] NSWCATAP 1

The Appeal Panel found no error of law. The Tribunal had considered the Building Contract, the amended plans, the role of the architect and Contract Superintendent, and the fact that the claimed variations did not strictly comply with the contract or the Home Building Act 1989 (NSW). It was open to the Tribunal to assess the Builder's variation claims on a quantum meruit basis, to prefer the contemporaneous Submitted Variations including Variation 9A, and to accept some Other Variations and labour claims on the evidence. The Tribunal's reasons were adequate, its findings were not shown to be against the weight of evidence or unfair and equitable, and no significant new evidence was...

Jurisdiction
Australia
Judgment Date
08 January 2020
Procedural Posture
Internal Appeal Under S 80(2) of the Civil and Administrative Tribunal Act 2013 (nsw) in a Home Building Dispute / Appeal Panel Review of Consumer and Commercial Division Decision Dated 23 September 2019; Leave to Appeal Sought
Outcome
Leave to appeal refused; appeal dismissed.
Legal Topics
['internal Appeal' 'leave to Appeal' 'quantum Meruit' 'residential Building Work' 'variations' 'reasons for Decision' 'weight of Evidence' 'substantial Miscarriage of Justice']
['administrative Law' 'home Building' 'consumer and Commercial Law' 'contract Law' 'restitution'] ['internal Appeal' 'leave to Appeal' 'quantum Meruit' 'residential Building Work' 'variations' 'reasons for Decision' 'weight of Evidence' 'substantial Miscarriage of Justice']

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Procedural Posture

Internal Appeal Under S 80(2) of the Civil and Administrative Tribunal Act 2013 (nsw) in a Home Building Dispute / Appeal Panel Review of Consumer and Commercial Division Decision Dated 23 September 2019; Leave to Appeal Sought

Legal Issues

  1. 1 ["Whether the Tribunal made an error of law in allowing the Builder's quantum meruit claims for variations." "Whether the Tribunal failed to give proper reasons or ignored the Home Owner's evidence, submissions, the Building Contract, or requirements of the Home Building Act 1989 (NSW)." 'Whether leave to appeal should be granted because the decision was not fair and equitable, was against the weight of evidence, or involved significant new evidence.' 'Whether the Tribunal erred in preferring Variation 9A and other invoices over later material relied on by the Home Owner.' "Whether the Builder's suspension of work or the Home Owner's cross application provided a basis to disturb the Tribunal's decision."]

Ratio Decidendi

The Appeal Panel found no error of law. The Tribunal had considered the Building Contract, the amended plans, the role of the architect and Contract Superintendent, and the fact that the claimed variations did not strictly comply with the contract or the Home Building Act 1989 (NSW). It was open to the Tribunal to assess the Builder's variation claims on a quantum meruit basis, to prefer the contemporaneous Submitted Variations including Variation 9A, and to accept some Other Variations and labour claims on the evidence. The Tribunal's reasons were adequate, its findings were not shown to be against the weight of evidence or unfair and equitable, and no significant new evidence was...

Court Disposition

Leave to appeal refused; appeal dismissed.

Orders

  • ['Leave to appeal is refused.' 'The appeal is dismissed.']