Payne v Keene [2022] NSWCATAP 236

Payne v Keene [2022] NSWCATAP 236

Leave to appeal was refused and the appeal dismissed because none of Mr Payne's grounds established a basis for leave. The alleged new photographs were not significant new evidence because they were taken before the hearing and included in his hearing bundle. The finding that the deck was non-compliant was not against the weight of evidence: the James Hardie Installation Guide was implied into the contract, the Scyon sheeting had been laid in a staggered pattern, the Guide required a 40mm reinforced mortar bed before tiling, and that would reduce the step down below the required minimum. The email from James Hardie Technical did not effect a contractual variation. The Member's work order...

Jurisdiction
Australia
Judgment Date
18 July 2022
Procedural Posture
Internal Appeal in a Home Building Dispute / Appeal Panel Hearing of Appeal From Consumer and Commercial Division Orders
Outcome
Leave to appeal refused; appeal dismissed; orders varied as to dates, wording and payment amount.
Legal Topics
['internal Appeals' 'leave to Appeal' 'significant New Evidence' 'weight of Evidence' 'defective Building Work' 'work Orders' 'implied Terms in Contracts']
['home Building' 'contract Law' 'administrative Law'] ['internal Appeals' 'leave to Appeal' 'significant New Evidence' 'weight of Evidence' 'defective Building Work' 'work Orders' 'implied Terms in Contracts']

Case Brief

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Procedural Posture

Internal Appeal in a Home Building Dispute / Appeal Panel Hearing of Appeal From Consumer and Commercial Division Orders

Legal Issues

  1. 1 ['Whether leave to appeal should be granted under cl 12 of Schedule 4 of the Civil and Administrative Tribunal Act 2013 (NSW).' 'Whether the decision under appeal was not fair and equitable.' 'Whether photographs relied on by Mr Payne constituted significant new evidence not reasonably available at the original hearing.' 'Whether the finding that Mr Payne failed to supply and install a compliant deck was against the weight of evidence.' 'Whether the James Hardie Installation Guide formed part of the contract between the parties as an implied term.' 'Whether it was appropriate to make a work order rather than a monetary order under the Home Building Act 1989 (NSW).']

Ratio Decidendi

Leave to appeal was refused and the appeal dismissed because none of Mr Payne's grounds established a basis for leave. The alleged new photographs were not significant new evidence because they were taken before the hearing and included in his hearing bundle. The finding that the deck was non-compliant was not against the weight of evidence: the James Hardie Installation Guide was implied into the contract, the Scyon sheeting had been laid in a staggered pattern, the Guide required a 40mm reinforced mortar bed before tiling, and that would reduce the step down below the required minimum. The email from James Hardie Technical did not effect a contractual variation. The Member's work order...

Court Disposition

Leave to appeal refused; appeal dismissed; orders varied as to dates, wording and payment amount.

Orders

  • ['Leave to appeal refused.' 'Appeal dismissed.' 'Aaron Payne is to remove the front deck the subject of these proceedings and reinstate it in compliance with the James Hardie Installation Guide and all other relevant guidelines and regulations.' 'The works the subject of the above order are to commence by 1 August...