Donohoe v Albulario [2025] NSWSC 9

Donohoe v Albulario [2025] NSWSC 9

The Appeal Panel erred in refusing to characterise the builder's grounds of appeal based on procedural unfairness as questions of law and thus erred in declining to entertain the appeal as of right. The denial of procedural fairness is an error of law. The Supreme Court had jurisdiction and leave should be granted, the appeal allowed, and the orders of the Appeal Panel set aside.

Parties
Plaintiff: Christopher Donohoe; First Defendant: Crisanto Albulario; Second Defendant: Ellen Albulario; Third Defendant: NSW Civil and Administrative Tribunal
Jurisdiction
Australia
Judgment Date
04 February 2025
Procedural Posture
Appeal / Judgment After Hearing on Leave and Merits of Appeal From Tribunal Appeal Panel
Outcome
Appeal allowed; orders of Appeal Panel set aside; costs ordered in favour of plaintiff; leave granted to rely on amended statement of claim and to appeal.
Legal Topics
Appeal on Question of Law, Procedural Fairness, Jurisdiction of Supreme Court, Tribunal Procedure
Administrative Law Civil Procedure Building and Construction Appeal on Question of Law Procedural Fairness Jurisdiction of Supreme Court Tribunal Procedure

Case Brief

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Parties

Christopher Donohoe

Plaintiff

Crisanto Albulario

First Defendant

Ellen Albulario

Second Defendant

NSW Civil and Administrative Tribunal

Third Defendant

Procedural Posture

Appeal / Judgment After Hearing on Leave and Merits of Appeal From Tribunal Appeal Panel

Legal Issues

  1. 1 Whether the Appeal Panel erred in characterising grounds as not raising a question of law
  2. 2 Whether denial of procedural fairness constitutes an error of law
  3. 3 Whether Supreme Court had jurisdiction to hear the appeal under s 83(1) of the Civil and Administrative Tribunal Act 2013 (NSW)

Ratio Decidendi

The Appeal Panel erred in refusing to characterise the builder's grounds of appeal based on procedural unfairness as questions of law and thus erred in declining to entertain the appeal as of right. The denial of procedural fairness is an error of law. The Supreme Court had jurisdiction and leave should be granted, the appeal allowed, and the orders of the Appeal Panel set aside.

Court Disposition

Appeal allowed; orders of Appeal Panel set aside; costs ordered in favour of plaintiff; leave granted to rely on amended statement of claim and to appeal.

Orders

  • Grant the plaintiff leave to rely upon the further amended statement of claim filed in Court at the hearing.
  • Grant the plaintiff leave to appeal from the decision of the Appeal Panel delivered on 28 August 2024.