Dafcam Pty Ltd v Babeck; Babeck v Dafcam Pty Ltd [2016] NSWCATAP 199

Dafcam Pty Ltd v Babeck; Babeck v Dafcam Pty Ltd [2016] NSWCATAP 199

The Appeal Panel found the Tribunal failed to make findings on two key defences raised by the builder and admitted and relied upon an expert report in a manner that denied the builder procedural fairness, amounting to an error of law. The use of the late expert report for findings without adequate opportunity to respond was a denial of natural justice. As a result, the Tribunal's orders were set aside and the matter remitted for rehearing before a differently constituted Tribunal.

Jurisdiction
Australia
Judgment Date
02 September 2016
Procedural Posture
Appeal / Appeal Decision Following Hearing of Two Consolidated Appeals (builder and Homeowners) After First Instance Decisions in Tribunal's Consumer and Commercial Division
Outcome
Builder's appeal upheld, homeowners' appeal dismissed. Orders under appeal set aside. Proceedings remitted for rehearing. Builder awarded costs of both appeals to be paid by homeowners.
Legal Topics
['procedural Fairness' 'natural Justice' 'damages Assessment' 'statutory Warranties' 'betterment' 'admissibility of Evidence']
['building and Construction' 'contracts' 'civil Procedure'] ['procedural Fairness' 'natural Justice' 'damages Assessment' 'statutory Warranties' 'betterment' 'admissibility of Evidence']

Case Brief

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Procedural Posture

Appeal / Appeal Decision Following Hearing of Two Consolidated Appeals (builder and Homeowners) After First Instance Decisions in Tribunal's Consumer and Commercial Division

Legal Issues

  1. 1 ['Whether the Tribunal denied procedural fairness in admitting and relying on an expert report served out of time and on samples not previously available to the builder' "Whether Tribunal failed to give adequate reasons by not addressing builder's three grounds of defence" 'Whether the assessment of damages improperly discounted amounts for betterment' "Whether the Tribunal's findings with respect to liability and quantum were impacted by the alleged deficiencies in expert evidence and the Tribunal's treatment of that evidence"]

Ratio Decidendi

The Appeal Panel found the Tribunal failed to make findings on two key defences raised by the builder and admitted and relied upon an expert report in a manner that denied the builder procedural fairness, amounting to an error of law. The use of the late expert report for findings without adequate opportunity to respond was a denial of natural justice. As a result, the Tribunal's orders were set aside and the matter remitted for rehearing before a differently constituted Tribunal.

Court Disposition

Builder's appeal upheld, homeowners' appeal dismissed. Orders under appeal set aside. Proceedings remitted for rehearing. Builder awarded costs of both appeals to be paid by homeowners.

Orders

  • ['Appeal AP 15/27974 is upheld;' 'Appeal AP 15/55371 is dismissed;' 'The orders made on 10 March 2015 and 4 September 2015 in proceedings HB 13/45811 are set aside;' 'Application HB 13/45811 is remitted to the Consumer and Commercial Division to be reheard before a differently constituted Tribunal;' "Builder's costs...