Kay v 3D Design & Build Pty Ltd [2016] NSWCATAP 68

Kay v 3D Design & Build Pty Ltd [2016] NSWCATAP 68

The appeal must be allowed and the orders below quashed as the Tribunal denied the appellant procedural fairness by relying on the Tyrrells Report without allowing the appellant sufficient opportunity to consider and respond, compounded by making a final determination during a directions hearing with no opportunity for submissions, and because the certification requirement set by the Tribunal had not been fully met. These were errors of law warranting remittal of the proceedings for rehearing.

Parties
Appellant: Amber Kay; Respondent: 3D Design & Build Pty Ltd
Jurisdiction
Australia
Judgment Date
17 March 2016
Procedural Posture
Internal Appeal / Appeal Determination
Outcome
Appeal allowed, decision below quashed, matter remitted for rehearing, monies recovered after lifting of stay to be repaid to appellant
Legal Topics
Procedural Fairness, Home Building Dispute, Natural Justice, Tribunal Procedure
Administrative Law Building and Construction Law Procedural Fairness Home Building Dispute Natural Justice Tribunal Procedure

Case Brief

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Parties

Amber Kay

Appellant

3D Design & Build Pty Ltd

Respondent

Procedural Posture

Internal Appeal / Appeal Determination

Legal Issues

  1. 1 Whether the appellant was denied procedural fairness by not being given an opportunity to respond to disputed evidence (the Tyrrells Report) at the hearing on 15 June 2015
  2. 2 Whether the Tribunal erred in lifting the stay based on improper or incomplete certification of rectification works
  3. 3 Whether orders ought be quashed and proceedings remitted due to denial of a reasonable opportunity to be heard

Ratio Decidendi

The appeal must be allowed and the orders below quashed as the Tribunal denied the appellant procedural fairness by relying on the Tyrrells Report without allowing the appellant sufficient opportunity to consider and respond, compounded by making a final determination during a directions hearing with no opportunity for submissions, and because the certification requirement set by the Tribunal had not been fully met. These were errors of law warranting remittal of the proceedings for rehearing.

Court Disposition

Appeal allowed, decision below quashed, matter remitted for rehearing, monies recovered after lifting of stay to be repaid to appellant

Orders

  • The appeal is allowed.
  • The decision made in proceedings HB 14/32008, including the money order made on 30 January 2015, is quashed.