Webster v Tom [2019] NSWCATAP 75

Webster v Tom [2019] NSWCATAP 75

Leave to appeal was refused and the appeal dismissed because the Tribunal's findings were open on the evidence and disclosed no error: the Contract and Specification made the Owners responsible for the Engineer's site classification and footing and slab design; the Tribunal was entitled to prefer Mr Hammond's evidence on future cracking and the existence of piers; the Owners did not establish that the decision was not fair and equitable or against the weight of evidence; and the proposed new evidence was not shown to have been unavailable at the original hearing.

Jurisdiction
Australia
Judgment Date
02 April 2019
Procedural Posture
Internal Appeal in a Home Building Claim Against a Builder / Appeal Panel Appeal From the Consumer and Commercial Division Decision [2018] NSWCATCD 6
Outcome
Appeal dismissed.
Legal Topics
['residential Building Work' 'implied Statutory Warranties' "scope of Builder's Work" 'site Classification and Footing Design' 'competing Expert Evidence' 'leave to Appeal' 'new Evidence' 'costs']
['home Building' 'consumer and Commercial' 'appeals' 'contract'] ['residential Building Work' 'implied Statutory Warranties' "scope of Builder's Work" 'site Classification and Footing Design' 'competing Expert Evidence' 'leave to Appeal' 'new Evidence' 'costs']

Case Brief

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Procedural Posture

Internal Appeal in a Home Building Claim Against a Builder / Appeal Panel Appeal From the Consumer and Commercial Division Decision [2018] NSWCATCD 6

Legal Issues

  1. 1 ["Whether the Tribunal erred in finding that the Owners were responsible for providing the Engineer's site classification and footing and slab design." "Whether the Tribunal's decision was not fair and equitable or was against the weight of the evidence concerning future cracking and the construction of piers." 'Whether the Owners should be given leave to rely on new evidence said not to have been reasonably available at the first instance hearing.' 'Whether leave to appeal should be granted under the Civil and Administrative Tribunal Act 2013 (NSW).']

Ratio Decidendi

Leave to appeal was refused and the appeal dismissed because the Tribunal's findings were open on the evidence and disclosed no error: the Contract and Specification made the Owners responsible for the Engineer's site classification and footing and slab design; the Tribunal was entitled to prefer Mr Hammond's evidence on future cracking and the existence of piers; the Owners did not establish that the decision was not fair and equitable or against the weight of evidence; and the proposed new evidence was not shown to have been unavailable at the original hearing.

Court Disposition

Appeal dismissed.

Orders

  • ['Appeal dismissed.' "Subject to order (3), the appellants are to pay the respondent's costs of this Appeal on the ordinary basis as agreed or as assessed in accordance with the applicable costs assessment legislation." 'If any party contends for a different costs order, such application (including submissions and...