Colourrender (Australia) Pty Ltd v Sarkis; Sarkis v Colourrender (Australia) Pty Ltd [2023] NSWCATAP 90

Colourrender (Australia) Pty Ltd v Sarkis; Sarkis v Colourrender (Australia) Pty Ltd [2023] NSWCATAP 90

The jurisdictional objection failed because the existing and fresh evidence did not establish that the work was completed before 16 May 2018, and admissions by the Builder supported an inference that the application was lodged within the relevant two-year period even if only non-major defects were claimed. Both appeals nevertheless succeeded because the Tribunal misconstrued or failed to consider the pleaded representation claims, including representations about the K Rend finish, and assessed rectification damages by relying on the Proyalbi quotation and applying a reduction without giving the parties a fair opportunity to address that basis. The Tribunal also erred by treating disparity...

Jurisdiction
Australia
Judgment Date
29 March 2023
Procedural Posture
Appeal and Cross Appeal From a Consumer & Commercial Division Home Building Decision / Appeal Panel
Outcome
Time for the Homeowners' appeal extended; both appeals upheld; jurisdictional point rejected; orders 2 and 3 at first instance set aside; matter remitted to the Consumer & Commercial Division for determination by a differently constituted Tribunal.
Legal Topics
['tribunal Jurisdiction Under the Home Building Act 1989 (nsw)' 'statutory Warranties' 'calculation of Rectification Damages' 'procedural Fairness' 'misleading or Deceptive Representations' 'leave to Appeal and Extension of Time' 'remittal']
['home Building' 'consumer Law' 'civil Procedure' 'administrative Law'] ['tribunal Jurisdiction Under the Home Building Act 1989 (nsw)' 'statutory Warranties' 'calculation of Rectification Damages' 'procedural Fairness' 'misleading or Deceptive Representations' 'leave to Appeal and Extension of Time' 'remittal']

Case Brief

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Procedural Posture

Appeal and Cross Appeal From a Consumer & Commercial Division Home Building Decision / Appeal Panel

Legal Issues

  1. 1 ["Whether the Tribunal lacked jurisdiction because the homeowners' application was lodged outside the warranty period under s 18E of the Home Building Act 1989 (NSW)." 'Whether the Tribunal erred in assessing the cost of rectification by relying on the Proyalbi quotation and applying a 20% reduction.' 'Whether the Tribunal failed to consider pleaded representations concerning the K Rend product and whether such representations were implied terms of the contract or otherwise actionable.' 'Whether the parties were denied procedural fairness in relation to the damages methodology adopted at first instance.' 'Whether the Tribunal erred in allowing or reducing claimed out-of-pocket expenses and scaffolding costs.' 'Whether the homeowners should be granted an extension of time for the cross-appeal and whether the matter should be remitted.']

Ratio Decidendi

The jurisdictional objection failed because the existing and fresh evidence did not establish that the work was completed before 16 May 2018, and admissions by the Builder supported an inference that the application was lodged within the relevant two-year period even if only non-major defects were claimed. Both appeals nevertheless succeeded because the Tribunal misconstrued or failed to consider the pleaded representation claims, including representations about the K Rend finish, and assessed rectification damages by relying on the Proyalbi quotation and applying a reduction without giving the parties a fair opportunity to address that basis. The Tribunal also erred by treating disparity...

Court Disposition

Time for the Homeowners' appeal extended; both appeals upheld; jurisdictional point rejected; orders 2 and 3 at first instance set aside; matter remitted to the Consumer & Commercial Division for determination by a differently constituted Tribunal.

Orders

  • ["The time for lodgement of the Homeowners' appeal is extended to the date of lodgement of the Homeowners' Notice of Appeal." 'Orders 2 and 3 made in the proceedings at first instance are set aside.' 'Both appeals are upheld.' "The Homeowners' application at first instance is remitted to the Consumer & Commercial...