Darin v Olzomer [2012] NSWCA 60

Darin v Olzomer [2012] NSWCA 60

The application failed because the owners did not show any no evidence error, error of law on the face of the record, jurisdictional error, or denial of procedural fairness in the District Court judgment. The issues before the Tribunal did not include a live dispute about liability for the other variations, apart from the split-level variation. The Tribunal was entitled to treat the remaining issue as the builder's entitlement to compensation for the split-level variation and to rely on the builder's final account material and evidence that the total costs of the works, including variations, were fair and reasonable. There was therefore evidence supporting the Tribunal's order, and the...

Jurisdiction
Australia
Judgment Date
26 March 2012
Procedural Posture
Application for Judicial Review in the Supervisory Jurisdiction Under S 69 of the Supreme Court Act 1970 (nsw) / Court of Appeal Application to Quash District Court Judgment Dismissing an Appeal From the Consumer, Trader and Tenancy Tribunal
Outcome
Application dismissed with costs payable by the applicants to the first respondent.
Legal Topics
['judicial Review' 'error of Law on the Face of the Record' 'no Evidence Ground' 'procedural Fairness' 'quantum Meruit' 'home Building Variations' 'appeal on a Question of Law']
['administrative Law' 'building and Construction' 'consumer, Trader and Tenancy Tribunal Appeals'] ['judicial Review' 'error of Law on the Face of the Record' 'no Evidence Ground' 'procedural Fairness' 'quantum Meruit' 'home Building Variations' 'appeal on a Question of Law']

Case Brief

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Procedural Posture

Application for Judicial Review in the Supervisory Jurisdiction Under S 69 of the Supreme Court Act 1970 (nsw) / Court of Appeal Application to Quash District Court Judgment Dismissing an Appeal From the Consumer, Trader and Tenancy Tribunal

Legal Issues

  1. 1 ['Whether the District Court committed an error of law on the face of the record by holding that there was evidence upon which the Tribunal was entitled to rely in assessing the quantum payable by the owners.' "Whether the Tribunal's alleged failure to make findings about variations other than the split-level variation meant there was no evidence to support the award." 'Whether the builder was required to file a notice of contention in the District Court to support an inference that the Tribunal allowed the other variations.' 'Whether a quantum meruit claim for variations not complying with the written variation requirement was available and supported by evidence of fair and reasonable value.']

Ratio Decidendi

The application failed because the owners did not show any no evidence error, error of law on the face of the record, jurisdictional error, or denial of procedural fairness in the District Court judgment. The issues before the Tribunal did not include a live dispute about liability for the other variations, apart from the split-level variation. The Tribunal was entitled to treat the remaining issue as the builder's entitlement to compensation for the split-level variation and to rely on the builder's final account material and evidence that the total costs of the works, including variations, were fair and reasonable. There was therefore evidence supporting the Tribunal's order, and the...

Court Disposition

Application dismissed with costs payable by the applicants to the first respondent.

Orders

  • ['Dismiss the application.' 'Order the applicants to pay the costs of the first respondent in this Court.']