Qui v Balmoral Street Developments Pty Ltd [2023] NSWCATAP 60

Qui v Balmoral Street Developments Pty Ltd [2023] NSWCATAP 60

The appeal was filed substantially out of time and the appellant did not demonstrate sufficient merit to show that refusal of an extension would work an injustice. The procedural fairness grounds were not established and, in any event, could have made no possible difference because the appellant did not displace the Tribunal's central finding that he had no standing to bring Home Building Act statutory warranty claims against the respondent for defects in common property, nor the alternative finding that lost rent was not proved by probative evidence. The challenge to the finding that the claim exceeded $30,000 was no more than merely arguable and unlikely to alter the costs result. Time...

Jurisdiction
Australia
Judgment Date
28 February 2023
Procedural Posture
Internal Appeal From Consumer and Commercial Division Decision Dismissing Home Building Claims and Ordering Costs / Application for Extension of Time to Lodge Notice of Appeal Determined on the Papers
Outcome
Leave to extend time to lodge the Notice of Appeal refused; hearing of the appeal dispensed with; directions made for the respondent's costs application.
Legal Topics
['extension of Time to Appeal' 'procedural Fairness' 'leave to Appeal' 'statutory Warranties Under the Home Building Act 1989 (nsw)' 'standing to Sue for Common Property Defects' 'costs Where Amount Claimed Exceeds $30, 000']
['civil Procedure' 'administrative Law' 'home Building' 'strata Law' 'costs'] ['extension of Time to Appeal' 'procedural Fairness' 'leave to Appeal' 'statutory Warranties Under the Home Building Act 1989 (nsw)' 'standing to Sue for Common Property Defects' 'costs Where Amount Claimed Exceeds $30,000']

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Procedural Posture

Internal Appeal From Consumer and Commercial Division Decision Dismissing Home Building Claims and Ordering Costs / Application for Extension of Time to Lodge Notice of Appeal Determined on the Papers

Legal Issues

  1. 1 ['Whether a hearing of the appeal should be dispensed with and the appeal determined on the papers.' 'Whether time should be extended for the appellant to lodge the Notice of Appeal filed outside the 28-day period.' 'Whether the Tribunal denied procedural fairness by allowing respondent material outside the timetable or scope of directions.' 'Whether any alleged procedural unfairness could have made a difference to the result.' "Whether the Tribunal made a finding without evidence that the appellant's claim exceeded $30,000 for costs purposes." 'Whether the appeal had sufficient merit to warrant an extension of time or leave to appeal.']

Ratio Decidendi

The appeal was filed substantially out of time and the appellant did not demonstrate sufficient merit to show that refusal of an extension would work an injustice. The procedural fairness grounds were not established and, in any event, could have made no possible difference because the appellant did not displace the Tribunal's central finding that he had no standing to bring Home Building Act statutory warranty claims against the respondent for defects in common property, nor the alternative finding that lost rent was not proved by probative evidence. The challenge to the finding that the claim exceeded $30,000 was no more than merely arguable and unlikely to alter the costs result. Time...

Court Disposition

Leave to extend time to lodge the Notice of Appeal refused; hearing of the appeal dispensed with; directions made for the respondent's costs application.

Orders

  • ['A hearing of the appeal is dispensed with.' 'Leave to extend time to lodge the Notice of Appeal is refused.' 'The respondent is to lodge submissions and evidence in support of its costs application with the Appeal Registry and give them to the appellant within 14 days of the publication of these orders.' 'Any...