Menaker v Adambuilt Pty Ltd [2019] NSWCATAP 117

Menaker v Adambuilt Pty Ltd [2019] NSWCATAP 117

Although the Appeal Panel extended time because the appellant had pursued renewal proceedings without unreasonable delay and the respondent identified no prejudice, leave to appeal was refused and the appeal dismissed. Joinder of the builder caused no disadvantage and was within the Tribunal's power because there was an issue whether the defect was attributable to the tiler or builder. The appellant did not establish illegitimate pressure, duress, mistake, misleading conduct, special disadvantage, or any other basis for setting aside the consent orders. The later photographs and limited implementation of the agreed cleaning approach did not establish significant new evidence giving rise...

Jurisdiction
Australia
Judgment Date
06 May 2019
Procedural Posture
Internal Appeal From Consumer and Commercial Division Home Building Proceedings / Appeal Panel Decision on Extension of Time, Leave to Appeal and Appeal
Outcome
Time to lodge the appeal extended; leave to appeal refused; appeal dismissed.
Legal Topics
['consent Orders' 'extension of Time to Appeal' 'leave to Appeal' 'joinder of Parties' 'procedural Fairness' 'significant New Evidence' 'substantial Miscarriage of Justice']
['civil and Administrative Tribunal Procedure' 'home Building' 'consumer and Commercial Disputes'] ['consent Orders' 'extension of Time to Appeal' 'leave to Appeal' 'joinder of Parties' 'procedural Fairness' 'significant New Evidence' 'substantial Miscarriage of Justice']

Case Brief

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Procedural Posture

Internal Appeal From Consumer and Commercial Division Home Building Proceedings / Appeal Panel Decision on Extension of Time, Leave to Appeal and Appeal

Legal Issues

  1. 1 ['Whether time to lodge the appeal should be extended.' "Whether joining the builder without the applicant's consent involved denial of procedural fairness or error of law." 'Whether the consent orders could be set aside on the basis of pressure, duress or mistake.' 'Whether photographs and events after the consent orders constituted significant new evidence not reasonably available at the time.' 'Whether the appellant may have suffered a substantial miscarriage of justice justifying leave to appeal.']

Ratio Decidendi

Although the Appeal Panel extended time because the appellant had pursued renewal proceedings without unreasonable delay and the respondent identified no prejudice, leave to appeal was refused and the appeal dismissed. Joinder of the builder caused no disadvantage and was within the Tribunal's power because there was an issue whether the defect was attributable to the tiler or builder. The appellant did not establish illegitimate pressure, duress, mistake, misleading conduct, special disadvantage, or any other basis for setting aside the consent orders. The later photographs and limited implementation of the agreed cleaning approach did not establish significant new evidence giving rise...

Court Disposition

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

Orders

  • ['The time to lodge the appeal is extended to 13 November 2018.' 'Leave to appeal refused.' 'Appeal dismissed.']