Liang v Jasta Constructions Pty Ltd [2022] NSWCATAP 364

Liang v Jasta Constructions Pty Ltd [2022] NSWCATAP 364

The appeal failed because the Owner identified no error of law or other error warranting leave. The Tribunal was entitled to proceed because the Owner had notice of the directions to lodge and serve evidence. The cross-claim issues were not before the Tribunal and were not a defence to the Builder's claim. On the only relevant issue, completion, the Builder gave credible evidence accepted by the Tribunal, while the Owner filed no evidence proving non-completion, defects preventing reasonable use, remaining rubbish or surplus material, or the required written notice under cl 8. The Tribunal's finding that the work was complete and that the contract balance was payable disclosed no error.

Jurisdiction
Australia
Judgment Date
17 November 2022
Procedural Posture
Building and Construction; Home Building Contract Dispute / Appeal From NSW Civil and Administrative Tribunal, Consumer and Commercial Division Decision Dated 3 August 2022
Outcome
Appeal dismissed; leave to appeal refused to the extent necessary.
Legal Topics
['home Building Contract' 'completion of Building Work' 'defects and Rectification' 'cross Claim Issues' 'procedural Fairness' 'fresh Evidence on Appeal' 'leave to Appeal']
['building and Construction' 'civil Procedure' 'tribunal Appeals'] ['home Building Contract' 'completion of Building Work' 'defects and Rectification' 'cross Claim Issues' 'procedural Fairness' 'fresh Evidence on Appeal' 'leave to Appeal']

Case Brief

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Procedural Posture

Building and Construction; Home Building Contract Dispute / Appeal From NSW Civil and Administrative Tribunal, Consumer and Commercial Division Decision Dated 3 August 2022

Legal Issues

  1. 1 ['Whether the Tribunal denied procedural fairness by proceeding where the Owner said she was unaware of directions to lodge and serve evidence.' "Whether the Owner's cross-claim issues about delay, defects and loss were relevant to the Builder's claim for the contract balance in the proceedings under appeal." 'Whether the Tribunal erred in finding that the building work was complete for the purposes of the contract.' 'Whether any error of law or other error justified allowing the appeal or granting leave to appeal.']

Ratio Decidendi

The appeal failed because the Owner identified no error of law or other error warranting leave. The Tribunal was entitled to proceed because the Owner had notice of the directions to lodge and serve evidence. The cross-claim issues were not before the Tribunal and were not a defence to the Builder's claim. On the only relevant issue, completion, the Builder gave credible evidence accepted by the Tribunal, while the Owner filed no evidence proving non-completion, defects preventing reasonable use, remaining rubbish or surplus material, or the required written notice under cl 8. The Tribunal's finding that the work was complete and that the contract balance was payable disclosed no error.

Court Disposition

Appeal dismissed; leave to appeal refused to the extent necessary.

Orders

  • ['The appeal is dismissed.' 'Leave to appeal to the extent it may be necessary is refused.']