Buildex Australia Pty Ltd v Soud [2016] NSWCATAP 83

Buildex Australia Pty Ltd v Soud [2016] NSWCATAP 83

The Appeal Panel held that the Senior Member did not make an error of law or miscarry her discretion in refusing the adjournment. It was permissible and necessary to consider the prospects of the clause 9 set aside application and the proposed transfer application when deciding whether to adjourn. Clause 9 applies only to decisions determining proceedings, and the refusal to transfer was not such a decision. The alleged procedural irregularity in the transfer decision did not establish error in the adjournment decision, which was the decision under appeal. The inapt use of the word "discontinuance" did not lead the Senior Member into error. The damages amount was varied downward by consent.

Jurisdiction
Australia
Judgment Date
12 April 2016
Procedural Posture
Appeal From Civil and Administrative Tribunal, Consumer and Commercial Division / Appeal Panel Decision
Outcome
In AP 15/51534 the appeal was upheld only for the purpose of varying the payment amount by consent and was otherwise dismissed. In AP 15/51590 the appeal was allowed by consent and the costs order was quashed.
Legal Topics
['error of Law' 'adjournment Application' 'hearing on the Papers' 'clause 9 Set Aside Application' 'transfer to District Court' 'procedural Irregularity' 'discretionary Decision']
['civil Procedure' 'administrative Law' 'consumer and Commercial' 'home Building'] ['error of Law' 'adjournment Application' 'hearing on the Papers' 'clause 9 Set Aside Application' 'transfer to District Court' 'procedural Irregularity' 'discretionary Decision']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Appeal From Civil and Administrative Tribunal, Consumer and Commercial Division / Appeal Panel Decision

Legal Issues

  1. 1 ['Whether the Tribunal erred on a question of law by refusing to adjourn the substantive hearing while a clause 9 set aside application was pending.' 'Whether the Tribunal misconstrued the scope of clause 9 by treating it as available only for decisions determining proceedings.' 'Whether the Tribunal failed to consider an alleged procedural irregularity under s 53(4) of the Civil and Administrative Tribunal Act 2013 (NSW).' 'Whether the Senior Member\'s discretion miscarried because of the builder\'s use of the word "discontinuance" in connection with the transfer application.' 'Whether the damages order should be reduced by consent of the parties.']

Ratio Decidendi

The Appeal Panel held that the Senior Member did not make an error of law or miscarry her discretion in refusing the adjournment. It was permissible and necessary to consider the prospects of the clause 9 set aside application and the proposed transfer application when deciding whether to adjourn. Clause 9 applies only to decisions determining proceedings, and the refusal to transfer was not such a decision. The alleged procedural irregularity in the transfer decision did not establish error in the adjournment decision, which was the decision under appeal. The inapt use of the word "discontinuance" did not lead the Senior Member into error. The damages amount was varied downward by consent.

Court Disposition

In AP 15/51534 the appeal was upheld only for the purpose of varying the payment amount by consent and was otherwise dismissed. In AP 15/51590 the appeal was allowed by consent and the costs order was quashed.

Orders

  • ['In AP 15/51534, the appeal is upheld for the purpose of making order 2 and is otherwise dismissed.' 'By consent of the parties order (1) made on 12 August 2015 is varied so that Buildex Australia Pty Ltd shall pay to Toolendrie Soud the sum of $267,681.74 on or before 30 April 2016.' 'In AP 15/51590, by consent of...