Wagg v Farthing [2015] NSWCATAP 217

Wagg v Farthing [2015] NSWCATAP 217

The Appeal Panel held that the Appellants established no error of law. There was no denial of procedural fairness because they had multiple opportunities to file compliant expert evidence, a guillotine order had been made, no leave was sought before tendering the further evidence, and the Respondent was entitled to object when the evidence was tendered. The design arguments did not disclose error because the implied term argument had not been put below and the Tribunal's findings about the dwelling location and lack of need for warning were open on the evidence. The termination findings were open because the Tribunal could find no breach of an essential term and no breach depriving the...

Jurisdiction
Australia
Judgment Date
06 October 2015
Procedural Posture
Internal Appeal in Home Building Proceedings / Appeal Panel Appeal From Consumer and Commercial Division Decision Dated 22 January 2015; Leave to Appeal Sought on Non Law Grounds
Outcome
Leave to appeal refused; appeal otherwise dismissed.
Legal Topics
['internal Appeal' 'error of Law' 'leave to Appeal' 'substantial Miscarriage of Justice' 'cost Plus Contract' 'termination of Contract' 'expert Evidence' 'guillotine Order' 'procedural Fairness' 'damages for Breach of Contract']
['administrative Law' 'home Building' 'contract Law' 'civil Procedure'] ['internal Appeal' 'error of Law' 'leave to Appeal' 'substantial Miscarriage of Justice' 'cost Plus Contract' 'termination of Contract' 'expert Evidence' 'guillotine Order' 'procedural Fairness' 'damages for Breach of Contract']

Case Brief

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Procedural Posture

Internal Appeal in Home Building Proceedings / Appeal Panel Appeal From Consumer and Commercial Division Decision Dated 22 January 2015; Leave to Appeal Sought on Non Law Grounds

Legal Issues

  1. 1 ['Whether the Tribunal denied the Appellants procedural fairness by refusing to admit further expert evidence and a statement served after earlier evidence was rejected.' 'Whether the Tribunal erred by not finding a design agreement term requiring the Respondent to recommend the dwelling location and associated costs or by finding no duty to warn about increased driveway costs.' 'Whether the Tribunal erred in finding that the Appellants had no contractual or common law right to terminate the cost plus building contract.' "Whether the Tribunal erred in calculating the Respondent builder's damages, including deductions for overheads, labour hire, general costs and expenses, margin and alleged double counting." 'Whether leave to appeal should be granted on the basis that the decision was not fair and equitable or was against the weight of the evidence.']

Ratio Decidendi

The Appeal Panel held that the Appellants established no error of law. There was no denial of procedural fairness because they had multiple opportunities to file compliant expert evidence, a guillotine order had been made, no leave was sought before tendering the further evidence, and the Respondent was entitled to object when the evidence was tendered. The design arguments did not disclose error because the implied term argument had not been put below and the Tribunal's findings about the dwelling location and lack of need for warning were open on the evidence. The termination findings were open because the Tribunal could find no breach of an essential term and no breach depriving the...

Court Disposition

Leave to appeal refused; appeal otherwise dismissed.

Orders

  • ['Leave to appeal is refused.' 'The appeal is otherwise dismissed.' 'Any application for costs of the appeal is to be filed and served within 14 days of the date of publication of these orders and is to be accompanied by a submission not exceeding three pages in length.' 'Any submission in response to an application...