Sleiman t/as Perfect Kitchens v Dempsey [2020] NSWCATAP 26

Sleiman t/as Perfect Kitchens v Dempsey [2020] NSWCATAP 26

The appeal was allowed because, although the builders did not establish procedural unfairness or a no-evidence error in the findings of defective cabinetry, the Tribunal's assessment of the owner's damages failed to account for the unpaid balance of the contract price. On the evidence, the unpaid balance exceeded the rectification and consequential losses found by the Tribunal, so the owner did not establish loss flowing from breach of contract. The builders were also unable to recover more because they could not enforce the non-compliant home building contract and their only possible recovery was quantum meruit under s 94(1A) of the Home Building Act 1989 (NSW), which, after allowing for...

Jurisdiction
Australia
Judgment Date
26 February 2020
Procedural Posture
Appeal From Consumer and Commercial Division Home Building Proceedings / Appeal Panel Decision
Outcome
Appeal allowed; first instance decision and costs decision set aside; both applications dismissed with no order as to costs; each party to bear their own appeal costs.
Legal Topics
['home Building Contract' 'damages for Breach of Contract' 'defective Residential Building Work' 'quantum Meruit' 'procedural Fairness' 'no Evidence Ground' 'costs']
['building and Construction' 'contract Law' 'administrative Law' 'costs'] ['home Building Contract' 'damages for Breach of Contract' 'defective Residential Building Work' 'quantum Meruit' 'procedural Fairness' 'no Evidence Ground' 'costs']

Case Brief

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Procedural Posture

Appeal From Consumer and Commercial Division Home Building Proceedings / Appeal Panel Decision

Legal Issues

  1. 1 ['Whether the Tribunal denied the builders procedural fairness by relying on documents allegedly excluded or not served.' 'Whether the Tribunal made findings about defective cabinetry without evidence or gave impermissible weight to expert material.' 'Whether leave to appeal should be granted on grounds that the decision was not fair and equitable or was against the weight of evidence.' 'Whether damages for breach of contract were incorrectly assessed by failing to take account of the unpaid balance of the contract price.' 'Whether either party should receive costs after both applications were dismissed.']

Ratio Decidendi

The appeal was allowed because, although the builders did not establish procedural unfairness or a no-evidence error in the findings of defective cabinetry, the Tribunal's assessment of the owner's damages failed to account for the unpaid balance of the contract price. On the evidence, the unpaid balance exceeded the rectification and consequential losses found by the Tribunal, so the owner did not establish loss flowing from breach of contract. The builders were also unable to recover more because they could not enforce the non-compliant home building contract and their only possible recovery was quantum meruit under s 94(1A) of the Home Building Act 1989 (NSW), which, after allowing for...

Court Disposition

Appeal allowed; first instance decision and costs decision set aside; both applications dismissed with no order as to costs; each party to bear their own appeal costs.

Orders

  • ['Appeal allowed.' 'Set aside the decision of 2 August 2019 and the costs decision of 18 September 2019.' 'Applications HB 18/49798 and HB 18/40912 are both dismissed with no order as to costs.' 'Each party is to bear their own costs of the appeal.']