Phillip v Bell Solar Pty Ltd [2019] NSWCATAP 162

Phillip v Bell Solar Pty Ltd [2019] NSWCATAP 162

There was no error of law because the Tribunal was authorised under section 48O(1)(c) of the Home Building Act 1989 to order the Respondent to remedy the defects, was authorised by section 48O(2) to make that order even though it was not the Applicant's preferred remedy, and was directed by section 48M to have regard to rectification by the responsible party as the preferred outcome. Leave to appeal was refused because the Applicant did not demonstrate a substantial miscarriage of justice: there was no evidence the Respondent could not be relied upon to remedy the defects, the recording and transcript did not support allegations about the Member's conduct, the Tribunal accepted the...

Jurisdiction
Australia
Judgment Date
03 July 2019
Procedural Posture
Appeal From a Consumer and Commercial Division Decision Concerning a Building Claim About Supply and Installation of a Solar Electrical System / Appeal Panel Hearing of Appeal and Application for Leave to Appeal
Outcome
The appeal is dismissed and leave to appeal is denied.
Legal Topics
['building Claim' 'defective Residential Building Work' 'statutory Warranty' 'work Order' 'rectification by Responsible Party' 'leave to Appeal' 'error of Law']
['consumer Law' 'home Building'] ['building Claim' 'defective Residential Building Work' 'statutory Warranty' 'work Order' 'rectification by Responsible Party' 'leave to Appeal' 'error of Law']

Case Brief

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Procedural Posture

Appeal From a Consumer and Commercial Division Decision Concerning a Building Claim About Supply and Installation of a Solar Electrical System / Appeal Panel Hearing of Appeal and Application for Leave to Appeal

Legal Issues

  1. 1 ['Whether the Tribunal erred in law by making a work order under section 48O(1)(c) of the Home Building Act 1989 instead of awarding compensation under section 48O(1)(a).' 'Whether leave to appeal should be granted on the basis that the decision was not fair and equitable, was against the weight of evidence, or lacked explanation.']

Ratio Decidendi

There was no error of law because the Tribunal was authorised under section 48O(1)(c) of the Home Building Act 1989 to order the Respondent to remedy the defects, was authorised by section 48O(2) to make that order even though it was not the Applicant's preferred remedy, and was directed by section 48M to have regard to rectification by the responsible party as the preferred outcome. Leave to appeal was refused because the Applicant did not demonstrate a substantial miscarriage of justice: there was no evidence the Respondent could not be relied upon to remedy the defects, the recording and transcript did not support allegations about the Member's conduct, the Tribunal accepted the...

Court Disposition

The appeal is dismissed and leave to appeal is denied.

Orders

  • ['The appeal is dismissed.' 'Leave to appeal is denied.' "Dismisses the Applicant's appeal, to the extent it is based on the proposition that the Tribunal erred in law in making the work orders on 15 January 2019." "Dismisses the Applicant's application for leave to appeal."]