Johnson v Lukeman [2016] NSWCATAP 272

Johnson v Lukeman [2016] NSWCATAP 272

Grounds 1 and 2 failed because the medical evidence did not establish that procedural fairness required an adjournment and Mr Maher's report sufficiently identified the rectification works, materials and scope to permit reliance and meaningful challenge. Ground 3 succeeded because the Tribunal did not have regard to, or did not disclose reasons addressing, s 48MA of the Home Building Act 1989 (NSW) before making a money order instead of a rectification order; that mandatory consideration required reconsideration of whether a money order ought to be made.

Jurisdiction
Australia
Judgment Date
21 December 2016
Procedural Posture
Appeal Concerning a Home Building Defective Works Claim / Appeal Panel From NSW Civil and Administrative Tribunal, Consumer and Commercial Division
Outcome
Appeal allowed; Order 1 of the Tribunal in HB 15/35078 set aside; case remitted for reconsideration on whether a money order ought to be made.
Legal Topics
['procedural Fairness' 'refusal of Adjournment' 'adequacy of Reasons' 'expert Evidence' 'defective Residential Building Work' 'rectification Orders' 'money Orders']
['administrative Law' 'home Building' 'civil Procedure'] ['procedural Fairness' 'refusal of Adjournment' 'adequacy of Reasons' 'expert Evidence' 'defective Residential Building Work' 'rectification Orders' 'money Orders']

Case Brief

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Procedural Posture

Appeal Concerning a Home Building Defective Works Claim / Appeal Panel From NSW Civil and Administrative Tribunal, Consumer and Commercial Division

Legal Issues

  1. 1 ["Whether the Tribunal denied procedural fairness by refusing to adjourn the hearing due to Mr Johnson's ill health and alleged inadequate preparation time." 'Whether the Tribunal failed to provide adequate reasons for refusing the adjournment.' "Whether the Tribunal erred in relying on Mr Maher's expert evidence as to the cost of rectification work." 'Whether the Tribunal failed to have regard to s 48MA of the Home Building Act 1989 (NSW), requiring regard to the principle that rectification by the responsible party is the preferred outcome.']

Ratio Decidendi

Grounds 1 and 2 failed because the medical evidence did not establish that procedural fairness required an adjournment and Mr Maher's report sufficiently identified the rectification works, materials and scope to permit reliance and meaningful challenge. Ground 3 succeeded because the Tribunal did not have regard to, or did not disclose reasons addressing, s 48MA of the Home Building Act 1989 (NSW) before making a money order instead of a rectification order; that mandatory consideration required reconsideration of whether a money order ought to be made.

Court Disposition

Appeal allowed; Order 1 of the Tribunal in HB 15/35078 set aside; case remitted for reconsideration on whether a money order ought to be made.

Orders

  • ['The appeal is allowed.' 'Order 1 of the Tribunal in HB 15/35078 is set aside.' 'The case is to be reconsidered by the Tribunal, on such evidence as the Tribunal sees fit, on the question of whether a money order ought to be made.' 'The parties are to file and serve submissions on costs by 15 January 2017 and (if...