Alta Building and Developments Pty Ltd v McAllery [2015] NSWCATAP 14

Alta Building and Developments Pty Ltd v McAllery [2015] NSWCATAP 14

The implication of a term requiring costs payable by the owners to be reasonably and properly incurred involved a question of law, but the Tribunal below made no error in implying that term. However, the evidence did not adequately support the findings that the builder's charges for concrete slabs, stairs and paved area, and for carpentry roof and wall, were unreasonable or improper merely because a subcontractor or estimate suggested a cheaper outcome. Those findings were not fair and equitable and were against the weight of evidence, so the appeal was allowed to that extent. The challenges to defect findings did not satisfy the requirements for leave to appeal.

Jurisdiction
Australia
Judgment Date
04 February 2015
Procedural Posture
Internal Appeal in a Home Building Dispute / Appeal From a Decision of the Civil and Administrative Tribunal Consumer and Commercial Division
Outcome
Appeal allowed in part; order below set aside and substituted with an order requiring the builder to pay a reduced amount to the owners; leave to appeal in respect of the order concerning defects refused; no costs order made.
Legal Topics
['question of Law' 'implied Terms' 'leave to Appeal' 'cost Plus Residential Building Contract' 'defective Building Work' 'substantial Miscarriage of Justice']
['civil and Administrative Tribunal' 'home Building' 'contract Law'] ['question of Law' 'implied Terms' 'leave to Appeal' 'cost Plus Residential Building Contract' 'defective Building Work' 'substantial Miscarriage of Justice']

Case Brief

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Procedural Posture

Internal Appeal in a Home Building Dispute / Appeal From a Decision of the Civil and Administrative Tribunal Consumer and Commercial Division

Legal Issues

  1. 1 ['Whether the Tribunal below erred in implying a term that costs payable by the owners should be reasonably and properly incurred.' 'Whether the findings that two categories of costs were not reasonably and properly incurred were supported by adequate or relevant evidence.' 'Whether leave to appeal should be granted in relation to findings about alleged defective work.' 'Whether certification by an engineer or principal certifying authority precluded findings that work was defective.']

Ratio Decidendi

The implication of a term requiring costs payable by the owners to be reasonably and properly incurred involved a question of law, but the Tribunal below made no error in implying that term. However, the evidence did not adequately support the findings that the builder's charges for concrete slabs, stairs and paved area, and for carpentry roof and wall, were unreasonable or improper merely because a subcontractor or estimate suggested a cheaper outcome. Those findings were not fair and equitable and were against the weight of evidence, so the appeal was allowed to that extent. The challenges to defect findings did not satisfy the requirements for leave to appeal.

Court Disposition

Appeal allowed in part; order below set aside and substituted with an order requiring the builder to pay a reduced amount to the owners; leave to appeal in respect of the order concerning defects refused; no costs order made.

Orders

  • ['Appeal allowed.' 'Order 1 made by the Tribunal on 24 June 2014 is set aside and in its place the order below is made.' 'Alta Building and Developments Pty Ltd must pay the sum of $ 62,825.31 to Brendan Joy McAllery and Tracy Catherine McAllery within 21 days of the date of this order.']