ACT Builders Pty Ltd v Haridemos [2015] NSWCATAP 256

ACT Builders Pty Ltd v Haridemos [2015] NSWCATAP 256

The appeal was dismissed because the delay in filing was minimal and justified an extension of time, but the substantive grounds failed: condition 19 and compliance with Development Consent were in issue before the Tribunal, the appellant had an opportunity to respond and was not denied procedural fairness, there was evidence from the contour plan and expert report supporting the finding that fill extended to within one metre of the boundary, condition 19 required fill within one metre of the boundary to be retained, and the expert evidence supported $55,750.00 as a reasonable rectification cost. No substantial miscarriage of justice was shown, so leave to appeal was refused.

Jurisdiction
Australia
Judgment Date
30 November 2015
Procedural Posture
Appeal From a Decision of the Consumer and Commercial Division of the New South Wales Civil and Administrative Tribunal in Residential Building Proceedings / Application for Extension of Time and Leave to Appeal Before the Appeal Panel
Outcome
Time to lodge the appeal extended; leave to appeal refused; appeal otherwise dismissed.
Legal Topics
['appeal on a Question of Law' 'leave to Appeal' 'extension of Time' 'development Consent Conditions' 'statutory Warranties' 'rectification Damages' 'no Evidence Ground']
['civil and Administrative Tribunal Appeals' 'residential Building Law' 'contract Law' 'procedural Fairness' 'damages'] ['appeal on a Question of Law' 'leave to Appeal' 'extension of Time' 'development Consent Conditions' 'statutory Warranties' 'rectification Damages' 'no Evidence Ground']

Case Brief

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Procedural Posture

Appeal From a Decision of the Consumer and Commercial Division of the New South Wales Civil and Administrative Tribunal in Residential Building Proceedings / Application for Extension of Time and Leave to Appeal Before the Appeal Panel

Legal Issues

  1. 1 ['Whether time to lodge the appeal should be extended where the appeal was filed two days out of time.' 'Whether the appellant was denied procedural fairness because condition 19 of the Development Consent was relied upon in re-examination and by the Tribunal.' 'Whether there was evidence to support the finding that fill extended to within one metre of the boundary.' 'Whether condition 19 of the Development Consent required retaining walls for fill extending to within one metre of the boundary.' 'Whether the award of $55,750.00 for rectification was contrary to the applicable measure of damages for defective building work.']

Ratio Decidendi

The appeal was dismissed because the delay in filing was minimal and justified an extension of time, but the substantive grounds failed: condition 19 and compliance with Development Consent were in issue before the Tribunal, the appellant had an opportunity to respond and was not denied procedural fairness, there was evidence from the contour plan and expert report supporting the finding that fill extended to within one metre of the boundary, condition 19 required fill within one metre of the boundary to be retained, and the expert evidence supported $55,750.00 as a reasonable rectification cost. No substantial miscarriage of justice was shown, so leave to appeal was refused.

Court Disposition

Time to lodge the appeal extended; leave to appeal refused; appeal otherwise dismissed.

Orders

  • ['The time to lodge the appeal is extended to 6 February 2015.' 'Leave to appeal is refused.' 'The appeal is otherwise dismissed.' 'Any application for costs is to be filed and served within 14 days from the date of these orders. Any application is to include written submissions and any other material to be relied...