Kapetanellis v Hatem [2016] NSWCATAP 41

Kapetanellis v Hatem [2016] NSWCATAP 41

The Tribunal Member failed to provide adequate reasons for preferring Mr O'Mara’s proposal regarding hydraulic rectification costs in paragraph 42 of the decision. This failure to give proper reasons justified allowing the appeal on that ground, remitting the matter for reconsideration by a differently constituted Tribunal. The appeal regarding the retaining wall (item 12) was dismissed, as the Member’s factual findings were open on the evidence and no substantial miscarriage of justice was demonstrated.

Jurisdiction
Australia
Judgment Date
16 February 2016
Procedural Posture
Civil Appeal / Appeal Panel Determination of Leave to Amend, Substantive Appeal, Remitter
Outcome
Appeal partially allowed, remitted for rehearing. Appeal on item 12 dismissed.
Legal Topics
['rectification of Defective Building Work' 'expert Evidence' 'adequacy of Tribunal Reasons' 'appeal Grounds' 'damages Assessment' 'costs']
['home Building' 'civil Procedure'] ['rectification of Defective Building Work' 'expert Evidence' 'adequacy of Tribunal Reasons' 'appeal Grounds' 'damages Assessment' 'costs']

Case Brief

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Procedural Posture

Civil Appeal / Appeal Panel Determination of Leave to Amend, Substantive Appeal, Remitter

Legal Issues

  1. 1 ['Whether the Tribunal failed to provide adequate reasons for its determination regarding hydraulic rectification costs' 'Whether leave to appeal should be granted on the retaining wall (item 12) findings' 'Appropriateness of expert evidence admitted' 'Obligation of Tribunal to give adequate reasons']

Ratio Decidendi

The Tribunal Member failed to provide adequate reasons for preferring Mr O'Mara’s proposal regarding hydraulic rectification costs in paragraph 42 of the decision. This failure to give proper reasons justified allowing the appeal on that ground, remitting the matter for reconsideration by a differently constituted Tribunal. The appeal regarding the retaining wall (item 12) was dismissed, as the Member’s factual findings were open on the evidence and no substantial miscarriage of justice was demonstrated.

Court Disposition

Appeal partially allowed, remitted for rehearing. Appeal on item 12 dismissed.

Orders

  • ["Hearing of appellant's amendment application dispensed with under s 50(2) Civil and Administrative Tribunal Act." 'Leave granted to appellant to amend notice of appeal to include ground of inadequate reasons at paragraph 42.' 'Notice of appeal treated as amended.' "Appellant ordered to pay respondent's costs...