Jubian v Clark; Clark v Jubian [2016] NSWCATAP 56

Jubian v Clark; Clark v Jubian [2016] NSWCATAP 56

The builder's appeal was dismissed because his set-off and work order grounds raised no question of law but questions of fact, and he failed to establish substantial miscarriage of justice warranting leave to appeal. The Tribunal was entitled to find the homeowners terminated the contract in response to the builder's surrender of his licence (repudiation), justifying refusal of a work order and award of damages instead. The homeowners' appeal was lodged out of time without sufficient explanation or merit; their claims lacked evidential foundation and the Tribunal gave adequate reasons. No substantial injustice justifying an extension of time and leave to appeal was demonstrated.

Parties
Appellant (builder) in AP 15/05271 / Respondent in AP 15/34863: Tony Jubian; Respondent (homeowner) in AP 15/05271 / Appellant in AP 15/34863: Scott Clark; Respondent (homeowner) in AP 15/05271 / Appellant in AP 15/34863: Celia Loneragan
Jurisdiction
Australia
Judgment Date
02 March 2016
Procedural Posture
Appeal From Consumer and Commercial Division Decision (home Building Dispute) / Appeal Panel Decision
Outcome
Appeals and applications for leave to appeal dismissed; application for extension of time refused; orders of Tribunal confirmed; costs reserved for submissions.
Legal Topics
Tribunal Appeals, Home Building Contracts, Damages, Set Off, Rectification Orders, Extension of Time, Tribunal Powers
Administrative Law Building and Construction Law Tribunal Appeals Home Building Contracts Damages Set Off Rectification Orders Extension of Time +1 more

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Parties

Tony Jubian

Appellant (builder) in AP 15/05271 / Respondent in AP 15/34863

Scott Clark

Respondent (homeowner) in AP 15/05271 / Appellant in AP 15/34863

Celia Loneragan

Respondent (homeowner) in AP 15/05271 / Appellant in AP 15/34863

Procedural Posture

Appeal From Consumer and Commercial Division Decision (home Building Dispute) / Appeal Panel Decision

Legal Issues

  1. 1 Whether the Tribunal erred in law in determining set-off for builder's claims
  2. 2 Whether Tribunal erred in declining rectification (work) order and finding builder abandoned/repudiated contract
  3. 3 Whether builder/applicants suffered a substantial miscarriage of justice to warrant leave to appeal

Ratio Decidendi

The builder's appeal was dismissed because his set-off and work order grounds raised no question of law but questions of fact, and he failed to establish substantial miscarriage of justice warranting leave to appeal. The Tribunal was entitled to find the homeowners terminated the contract in response to the builder's surrender of his licence (repudiation), justifying refusal of a work order and award of damages instead. The homeowners' appeal was lodged out of time without sufficient explanation or merit; their claims lacked evidential foundation and the Tribunal gave adequate reasons. No substantial injustice justifying an extension of time and leave to appeal was demonstrated.

Court Disposition

Appeals and applications for leave to appeal dismissed; application for extension of time refused; orders of Tribunal confirmed; costs reserved for submissions.

Orders

  • The appeal and application for leave to appeal of Mr Jubian (AP 15/05271) are dismissed.
  • The application of Mr Clark and Ms Loneragan (AP 15/348663) to extend time within which to lodge their appeal and application for leave to appeal are refused.