White v McClellan [2022] NSWCATAP 340

White v McClellan [2022] NSWCATAP 340

The Appeal Panel refused leave and dismissed the appeal because the appellant did not establish legal error or a basis for leave. He provided no transcript to substantiate the adjournment and fair hearing complaint; the evidence supported the finding that the respondents contracted with David White personally; the asserted terms and conditions did not assist and, if applicable, would be void to the extent they restricted statutory warranty rights; the Tribunal's findings that defective preparation caused the paint failure were not against the weight of the evidence; the appellant's alleged oral advice about a full strip back could not found a defence under s 18F because it was not written...

Jurisdiction
Australia
Judgment Date
02 November 2022
Procedural Posture
Internal Appeal Under S 80(2) of the Civil and Administrative Tribunal Act 2013 From a Consumer and Commercial Division Home Building Decision / Appeal Panel Decision on Leave to Appeal and Appeal
Outcome
Leave to appeal refused; appeal dismissed.
Legal Topics
['home Building Act 1989 Statutory Warranties' 'residential Building Work' 'assessment of Compensation' 'leave to Appeal' 'decision Against the Weight of Evidence' 'procedural Fairness and Adjournment' 'contracting Party Identity' 'exclusion of Statutory Warranties']
['administrative Law' 'home Building' 'consumer and Commercial Disputes' 'contract Law'] ['home Building Act 1989 Statutory Warranties' 'residential Building Work' 'assessment of Compensation' 'leave to Appeal' 'decision Against the Weight of Evidence' 'procedural Fairness and Adjournment' 'contracting Party Identity' 'exclusion of Statutory Warranties']

Case Brief

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Procedural Posture

Internal Appeal Under S 80(2) of the Civil and Administrative Tribunal Act 2013 From a Consumer and Commercial Division Home Building Decision / Appeal Panel Decision on Leave to Appeal and Appeal

Legal Issues

  1. 1 ['Whether the Tribunal should have granted the appellant an adjournment on medical grounds' 'Whether the contracting entity was In2Paint Pty Limited or David White personally' 'Whether the Terms and Conditions relied on by the appellant formed part of the contract and were not void' 'Whether the cause of the paintwork bubbling and cracking was subsequent water ingress' "Whether the Tribunal should have preferred the appellant's evidence over the respondents' and their witnesses' evidence" 'Whether the damages amount of $45,000 was excessive or unsupported by the evidence']

Ratio Decidendi

The Appeal Panel refused leave and dismissed the appeal because the appellant did not establish legal error or a basis for leave. He provided no transcript to substantiate the adjournment and fair hearing complaint; the evidence supported the finding that the respondents contracted with David White personally; the asserted terms and conditions did not assist and, if applicable, would be void to the extent they restricted statutory warranty rights; the Tribunal's findings that defective preparation caused the paint failure were not against the weight of the evidence; the appellant's alleged oral advice about a full strip back could not found a defence under s 18F because it was not written...

Court Disposition

Leave to appeal refused; appeal dismissed.

Orders

  • ['Leave to Appeal refused.' 'Appeal dismissed.']