Goncalves v Bora Developments Pty Ltd [2021] NSWCATAP 231

Goncalves v Bora Developments Pty Ltd [2021] NSWCATAP 231

The Appeal Panel refused leave and dismissed the appeal because the Tribunal made no error of law or other reviewable error in finding that the Contract did not require the Builder to perform the OSD and stormwater work, that practical completion occurred on 20 December 2017, that the Owner was not entitled to terminate and instead repudiated the Contract, that the Builder was entitled to interest, and that the Owner was not entitled to further occupation certificate costs or economic loss; the requirements for leave under cl 12 of Sch 4 to the NCAT Act were not satisfied.

Jurisdiction
Australia
Judgment Date
04 August 2021
Procedural Posture
Internal Appeal in Home Building Proceedings / Appeal Panel From NSW Civil and Administrative Tribunal, Consumer and Commercial Division Decision Dated 19 August 2020
Outcome
Leave to appeal refused; appeal otherwise dismissed.
Legal Topics
['internal Appeals' 'leave to Appeal' 'construction of Building Contract' 'practical Completion' 'repudiation and Termination' 'home Warranty Insurance' 'liquidated Damages' 'costs Submissions']
['administrative Law' 'civil Procedure' 'contract Law' 'home Building Law'] ['internal Appeals' 'leave to Appeal' 'construction of Building Contract' 'practical Completion' 'repudiation and Termination' 'home Warranty Insurance' 'liquidated Damages' 'costs Submissions']

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Procedural Posture

Internal Appeal in Home Building Proceedings / Appeal Panel From NSW Civil and Administrative Tribunal, Consumer and Commercial Division Decision Dated 19 August 2020

Legal Issues

  1. 1 ['Whether the Tribunal erred in law in concluding that the Builder was not obliged under the Contract to perform the OSD and stormwater work.' 'Whether the Owner validly terminated the Contract or instead repudiated it.' 'Whether practical completion occurred on 20 December 2017 so that the Builder was entitled to recover the relevant instalment payment.' 'Whether the Tribunal correctly calculated interest owing to the Builder under the Contract.' 'Whether the Owner was entitled to recover costs incurred in obtaining the occupation certificate.' 'Whether the Owner was entitled to compensation for economic loss beyond the $97 awarded.' 'Whether leave to appeal should be granted on any non-question of law ground.']

Ratio Decidendi

The Appeal Panel refused leave and dismissed the appeal because the Tribunal made no error of law or other reviewable error in finding that the Contract did not require the Builder to perform the OSD and stormwater work, that practical completion occurred on 20 December 2017, that the Owner was not entitled to terminate and instead repudiated the Contract, that the Builder was entitled to interest, and that the Owner was not entitled to further occupation certificate costs or economic loss; the requirements for leave under cl 12 of Sch 4 to the NCAT Act were not satisfied.

Court Disposition

Leave to appeal refused; appeal otherwise dismissed.

Orders

  • ['Leave to appeal is refused;' 'The appeal is otherwise dismissed;' 'Any application for costs of the appeal together with supporting submissions should be filed and served within 21 days of publication of this decision;' 'Any submission in reply should be filed and served within a further 21 days;' 'Costs...