Dave King Building Services Pty Ltd v LeLievre; LeLievre v Dave King Building Services Pty Ltd [2020] NSWCATAP 204

Dave King Building Services Pty Ltd v LeLievre; LeLievre v Dave King Building Services Pty Ltd [2020] NSWCATAP 204

The building company was not granted leave because the Tribunal's rejection of the late Rendell expert report was a reasonable discretionary response to serious non-compliance with directions and the guiding principle, and the Tribunal's acceptance and weighing of Mr Troy's expert evidence was open on the evidence and did not cause a substantial miscarriage of justice. The legal unreasonableness ground failed. The homeowner was not granted an extension of time because, although the delay and prejudice factors were not decisive against him, his proposed appeal lacked prospects: the new financial information did not support personal liability of Mr King, and the Tribunal's finding that the...

Jurisdiction
Australia
Judgment Date
02 October 2020
Procedural Posture
Internal Appeals in the Appeal Panel From a Consumer and Commercial Division Home Building Decision / Appeal; Application for Leave to Appeal; Application for Extension of Time to Appeal
Outcome
Leave to appeal refused and appeal dismissed in AP 20/09999; application for extension of time refused and appeal dismissed in AP 20/18810.
Legal Topics
['internal Appeal' 'leave to Appeal' 'extension of Time' 'expert Opinion Evidence' 'expert Witness Code' 'late Expert Report' 'discretion to Reject Evidence' 'statutory Warranties for Residential Building Work']
['administrative Law' 'civil Procedure' 'home Building' 'evidence'] ['internal Appeal' 'leave to Appeal' 'extension of Time' 'expert Opinion Evidence' 'expert Witness Code' 'late Expert Report' 'discretion to Reject Evidence' 'statutory Warranties for Residential Building Work']

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Procedural Posture

Internal Appeals in the Appeal Panel From a Consumer and Commercial Division Home Building Decision / Appeal; Application for Leave to Appeal; Application for Extension of Time to Appeal

Legal Issues

  1. 1 ["Whether the building company should be granted leave to appeal on grounds concerning the Tribunal's treatment of Mr Troy's expert evidence." 'Whether the Tribunal erred in rejecting the late expert report of A Rendell & Associates Construction Consultants.' "Whether the Tribunal's conclusion that Mr Troy was the only unchallenged expert was legally unreasonable." 'Whether the homeowner should receive an extension of time to appeal against dismissal of his claim against David Warrick King personally.' "Whether significant new evidence or the weight of evidence supported the homeowner's contention that the contract was with David Warrick King personally as well as the building company."]

Ratio Decidendi

The building company was not granted leave because the Tribunal's rejection of the late Rendell expert report was a reasonable discretionary response to serious non-compliance with directions and the guiding principle, and the Tribunal's acceptance and weighing of Mr Troy's expert evidence was open on the evidence and did not cause a substantial miscarriage of justice. The legal unreasonableness ground failed. The homeowner was not granted an extension of time because, although the delay and prejudice factors were not decisive against him, his proposed appeal lacked prospects: the new financial information did not support personal liability of Mr King, and the Tribunal's finding that the...

Court Disposition

Leave to appeal refused and appeal dismissed in AP 20/09999; application for extension of time refused and appeal dismissed in AP 20/18810.

Orders

  • ['In AP 20/09999: Leave to appeal is refused.' 'In AP 20/09999: The appeal is dismissed.' 'In AP 20/18810: The application for an extension of time in which to appeal is refused.' 'In AP 20/18810: The appeal is dismissed.']