Hope v Hutchings; Hutchings v Hope [2021] NSWCATAP 19

Hope v Hutchings; Hutchings v Hope [2021] NSWCATAP 19

The builder's claim, even if framed in quantum meruit, related to the contractual agreement between the parties and was lodged more than 3 years after the contract was entered into, so the Tribunal was correct to find it was out of time under s 48K(8) of the Home Building Act 1989. The Tribunal's finding that the written contract was a sham was open on the evidence, including the alleged statement about tearing up the contract after loan approval and the surrounding circumstances, and amounted to clear and convincing proof of the parties' subjective intention. Neither party established error of law or grounds for leave based on the decision being against the weight of evidence.

Jurisdiction
Australia
Judgment Date
04 February 2021
Procedural Posture
Home Building Internal Appeals / Appeal Panel Application for Leave to Appeal and Appeal From Consumer and Commercial Division Decision Dated 23 December 2019
Outcome
Leave to appeal refused and appeal dismissed.
Legal Topics
['time Limitation for Building Claims' 'quantum Meruit' 'sham Contract' 'subjective Intention' 'against the Weight of Evidence' 'substantial Miscarriage of Justice']
['home Building' 'civil and Administrative Tribunal Appeals' 'contract Law'] ['time Limitation for Building Claims' 'quantum Meruit' 'sham Contract' 'subjective Intention' 'against the Weight of Evidence' 'substantial Miscarriage of Justice']

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Procedural Posture

Home Building Internal Appeals / Appeal Panel Application for Leave to Appeal and Appeal From Consumer and Commercial Division Decision Dated 23 December 2019

Legal Issues

  1. 1 ["Whether the builder's quantum meruit claim was a building claim relating to a contract and therefore outside the Tribunal's jurisdiction under s 48K(8) of the Home Building Act 1989 because it was lodged more than 3 years after the contract was entered into." 'Whether the Tribunal made an error of law in finding that the written contract dated 21 May 2014 was a sham and not intended to bind the parties.' 'Whether either party should be granted leave to appeal on the basis that the decision was against the weight of evidence and may have caused a substantial miscarriage of justice.']

Ratio Decidendi

The builder's claim, even if framed in quantum meruit, related to the contractual agreement between the parties and was lodged more than 3 years after the contract was entered into, so the Tribunal was correct to find it was out of time under s 48K(8) of the Home Building Act 1989. The Tribunal's finding that the written contract was a sham was open on the evidence, including the alleged statement about tearing up the contract after loan approval and the surrounding circumstances, and amounted to clear and convincing proof of the parties' subjective intention. Neither party established error of law or grounds for leave based on the decision being against the weight of evidence.

Court Disposition

Leave to appeal refused and appeal dismissed.

Orders

  • ['Leave to appeal is refused.' 'The appeal is dismissed.' 'If either party seeks to make an application for costs that they are to provide to the Appeal Panel and the other party the application in writing, either in person or by post, any submissions and documents in relation to any application for costs by 12...