Lucien v Mullally [2022] NSWCATAP 257

Lucien v Mullally [2022] NSWCATAP 257

The Appeal Panel held that the Tribunal’s finding that the builder failed to proceed with the works diligently during the relevant period was open to it on the evidence and was not against the weight of the evidence. The owner's termination of the contract was valid under the contractual notice provisions. The appellant did not establish any error of law nor that the Tribunal erred in fact in a way that would justify leave to appeal. The Tribunal had jurisdiction as claims did not exceed the statutory limit. Leave to appeal was refused and the appeal dismissed.

Jurisdiction
Australia
Judgment Date
04 August 2022
Procedural Posture
Appeal / Decision on Application for Leave to Appeal and Appeal
Outcome
Leave to appeal refused. Appeal dismissed. Costs ordered against appellant.
Legal Topics
['home Building Act 1989 (nsw)' 'ncat Internal Appeal Leave to Appeal' 'determination of Breach and Termination of Residential Building Contract' 'jurisdictional Limit Under Home Building Act 1989']
['building and Construction' 'tribunal Appeals'] ['home Building Act 1989 (nsw)' 'ncat Internal Appeal Leave to Appeal' 'determination of Breach and Termination of Residential Building Contract' 'jurisdictional Limit Under Home Building Act 1989']

Case Brief

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Procedural Posture

Appeal / Decision on Application for Leave to Appeal and Appeal

Legal Issues

  1. 1 ['Whether Tribunal erred in finding that the builder (appellant) failed to proceed with works diligently and that owner was entitled to terminate the contract' 'Whether the Tribunal’s findings were against the weight of evidence' 'Whether Tribunal erred in finding the contract was validly terminated by owner on 24 April 2019' "Whether owner's conduct contributed to delay and thus affected builder's breach" 'Whether Tribunal lacked jurisdiction due to monetary limits under Home Building Act 1989']

Ratio Decidendi

The Appeal Panel held that the Tribunal’s finding that the builder failed to proceed with the works diligently during the relevant period was open to it on the evidence and was not against the weight of the evidence. The owner's termination of the contract was valid under the contractual notice provisions. The appellant did not establish any error of law nor that the Tribunal erred in fact in a way that would justify leave to appeal. The Tribunal had jurisdiction as claims did not exceed the statutory limit. Leave to appeal was refused and the appeal dismissed.

Court Disposition

Leave to appeal refused. Appeal dismissed. Costs ordered against appellant.

Orders

  • ['Leave to appeal refused.' 'Appeal dismissed.' "Appellant to pay respondent's costs of the appeal as agreed or assessed on the ordinary basis." 'If parties do not agree on costs order, the order ceases to have effect.' 'Any party seeking a different costs order must file and serve submissions within seven days of...