Orell v Clas Concrete & Constructions Pty Ltd [2024] NSWCATAP 220

Orell v Clas Concrete & Constructions Pty Ltd [2024] NSWCATAP 220

The tribunal constructively failed to exercise its jurisdiction or failed to provide adequate reasons by not deciding or explaining whether statutory provisions barring enforcement by unlicensed or uninsured builders applied, and by not addressing evidence regarding necessity and cost of remedial concrete paths. This was a material error of law warranting allowance of the appeal, setting aside the money order, directing reconsideration of specified issues, and awarding costs to the appellant.

Parties
Appellant: Fernando Orell; Respondent: Clas Concrete & Constructions Pty Ltd
Jurisdiction
Australia
Judgment Date
05 November 2024
Procedural Posture
Civil Appeal / Appeal Decision
Outcome
appeal allowed
Legal Topics
Statutory Warranties, Residential Building Disputes, Procedural Fairness, Adequacy of Reasons, Enforceability of Contracts, Unlicensed Contracting, Uninsured Building Work, Quantum Meruit, Costs in Tribunal Proceedings
Building and Construction Law Administrative Law Statutory Warranties Residential Building Disputes Procedural Fairness Adequacy of Reasons Enforceability of Contracts Unlicensed Contracting +3 more

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Parties

Fernando Orell

Appellant

Clas Concrete & Constructions Pty Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal Decision

Legal Issues

  1. 1 Whether the tribunal failed to determine or provide adequate reasons regarding statutory bar on recovery by unlicensed and uninsured builders under the Home Building Act 1989 (NSW)
  2. 2 Whether the tribunal failed to determine or provide adequate reasons regarding rectification costs for concrete paths required due to defective works
  3. 3 Whether the decision involved constructive failure to exercise jurisdiction or failure to provide adequate reasons

Ratio Decidendi

The tribunal constructively failed to exercise its jurisdiction or failed to provide adequate reasons by not deciding or explaining whether statutory provisions barring enforcement by unlicensed or uninsured builders applied, and by not addressing evidence regarding necessity and cost of remedial concrete paths. This was a material error of law warranting allowance of the appeal, setting aside the money order, directing reconsideration of specified issues, and awarding costs to the appellant.

Court Disposition

appeal allowed

Orders

  • Leave to appeal is granted.
  • Appeal is allowed.