Austral Built Pty Limited v Khan & Sultana [2022] NSWCATAP 403

Austral Built Pty Limited v Khan & Sultana [2022] NSWCATAP 403

The only established basis for appellate intervention was the conceded deduction for unpaid progress payments, requiring reduction of the money order to $168,251.50. The Tribunal did not err in calculating the agreed incomplete works, gave detailed and cogent reasons for preferring the Respondents' expert evidence, applied the correct approach to mitigation by asking whether the Respondents acted unreasonably, and made no error of law or factual error warranting leave. The purported new evidence was either irrelevant because of the concession, already addressed, available at first instance, excluded below without any appeal ground challenging that exclusion, or already before the Tribunal.

Jurisdiction
Australia
Judgment Date
23 December 2022
Procedural Posture
Appeal From Consumer and Commercial Division Home Building Proceedings / Appeal Panel Decision on Appeal, Application for Leave to Appeal, and Application to Rely on New Evidence
Outcome
Appeal allowed in part; order varied to substitute $168,251.50 for $385,001.50; appeal otherwise dismissed; leave to appeal refused.
Legal Topics
['question of Law' 'leave to Appeal' 'new Evidence' 'building Defects and Incomplete Works' 'mitigation of Loss' 'expert Evidence' 'assessment of Damages']
['administrative Law' 'home Building' 'appeals'] ['question of Law' 'leave to Appeal' 'new Evidence' 'building Defects and Incomplete Works' 'mitigation of Loss' 'expert Evidence' 'assessment of Damages']

Case Brief

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Procedural Posture

Appeal From Consumer and Commercial Division Home Building Proceedings / Appeal Panel Decision on Appeal, Application for Leave to Appeal, and Application to Rely on New Evidence

Legal Issues

  1. 1 ['Whether the Tribunal made an error of law in ordering the Appellant to pay $385,001.50.' 'Whether unpaid progress payments should be deducted from the money order.' 'Whether the Tribunal made an arithmetical error in calculating agreed incomplete works.' "Whether the Tribunal erred in preferring the Respondents' expert evidence about defective and incomplete works, timber deterioration, scaffolding and crane hire." 'Whether the Respondents failed to mitigate loss after termination of the building contract.' 'Whether leave to appeal should be granted.' 'Whether the Appellant should be permitted to rely on purported new evidence.']

Ratio Decidendi

The only established basis for appellate intervention was the conceded deduction for unpaid progress payments, requiring reduction of the money order to $168,251.50. The Tribunal did not err in calculating the agreed incomplete works, gave detailed and cogent reasons for preferring the Respondents' expert evidence, applied the correct approach to mitigation by asking whether the Respondents acted unreasonably, and made no error of law or factual error warranting leave. The purported new evidence was either irrelevant because of the concession, already addressed, available at first instance, excluded below without any appeal ground challenging that exclusion, or already before the Tribunal.

Court Disposition

Appeal allowed in part; order varied to substitute $168,251.50 for $385,001.50; appeal otherwise dismissed; leave to appeal refused.

Orders

  • ['The appeal is allowed in part.' 'Order 2 of the Orders of 29 August 2022 is varied to provide that, in lieu of the sum of $385,001.50 the sum of $168,251.50 be substituted.' 'The appeal is otherwise dismissed.' 'Leave to appeal is refused.' 'Any party seeking an order for costs of the appeal file and serve written...