Alex Constructions Pty Limited v John Zavodnyik & Ors [2004] NSWSC 1152

Alex Constructions Pty Limited v John Zavodnyik & Ors [2004] NSWSC 1152

The appeal failed because none of the grounds argued by the plaintiff fell within the ambit of s 67: they either concerned questions of fact, matters not raised before the Tribunal, or contentions not made out on the Tribunal's findings and evidence. The plaintiff did not establish appealable error in the Tribunal's awards for delay, defective work, or completion costs.

Jurisdiction
Australia
Judgment Date
06 December 2004
Procedural Posture
Appeal From Consumer Trader and Tenancy Tribunal of NSW Decision / Further Amended Summons Challenging Tribunal Decision Under S 67 Dismissed
Outcome
The summons is dismissed; the plaintiff is to pay the costs of the summons.
Legal Topics
['appeal From Tribunal' 'ambit of Appeal Under S 67' 'questions With Respect to a Matter of Law' 'arguments Not Raised in the Tribunal' 'no Evidence Grounds' 'liquidated Damages and Delay Costs' 'defective Work Damages' 'costs of Completion']
['administrative Law' 'building and Construction' 'contract Law'] ['appeal From Tribunal' 'ambit of Appeal Under S 67' 'questions With Respect to a Matter of Law' 'arguments Not Raised in the Tribunal' 'no Evidence Grounds' 'liquidated Damages and Delay Costs' 'defective Work Damages' 'costs of Completion']

Case Brief

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Procedural Posture

Appeal From Consumer Trader and Tenancy Tribunal of NSW Decision / Further Amended Summons Challenging Tribunal Decision Under S 67 Dismissed

Legal Issues

  1. 1 ["Whether the plaintiff's grounds fell within the ambit of an appeal under s 67 of the Consumer Trader & Tenancy Tribunal Act 2001." 'Whether delay damages should have been awarded despite clause 10.10 of the contract and alleged owner-caused delay or prior deductions.' 'Whether damages for defective work were unavailable because units had been sold or because deductions had already been made.' 'Whether the Tribunal erred in accepting evidence as to costs of completion or failing to account for deductions.']

Ratio Decidendi

The appeal failed because none of the grounds argued by the plaintiff fell within the ambit of s 67: they either concerned questions of fact, matters not raised before the Tribunal, or contentions not made out on the Tribunal's findings and evidence. The plaintiff did not establish appealable error in the Tribunal's awards for delay, defective work, or completion costs.

Court Disposition

The summons is dismissed; the plaintiff is to pay the costs of the summons.

Orders

  • ['The summons is dismissed.' 'The plaintiff is to pay the costs of the summons.' 'The exhibits may be returned.']