Galdona v Peacock [2017] NSWCATAP 64

Galdona v Peacock [2017] NSWCATAP 64

The Tribunal Member erred in law by failing to have regard to the mandatory consideration in section 48MA of the Home Building Act 1989, but the Appeal Panel confirmed the decision because, even if that principle had been considered, the result would have been no different given findings that the parties' relationship had broken down, the appellants did not acknowledge the poor standard of their work, and the Tribunal Member had severe reservations about their ability to rectify the work with due care and skill. The appellants did not establish inadequate reasons or that the decision was against the weight of evidence, so leave to appeal was refused and the Tribunal decision was confirmed.

Jurisdiction
Australia
Judgment Date
24 March 2017
Procedural Posture
Internal Appeal From a Consumer and Commercial Division Home Building Decision / Appeal Panel Determination of Appeal and Application for Leave to Appeal
Outcome
Leave to appeal refused; appeal dismissed; Tribunal decision confirmed; stay discharged.
Legal Topics
['adequacy of Reasons' 'home Building Act Work Orders' 'rectification of Defective Residential Building Work' 'failure to Take Into Account Relevant Considerations' 'leave to Appeal' 'substantial Miscarriage of Justice']
['administrative Law' 'building and Construction' 'civil Procedure'] ['adequacy of Reasons' 'home Building Act Work Orders' 'rectification of Defective Residential Building Work' 'failure to Take Into Account Relevant Considerations' 'leave to Appeal' 'substantial Miscarriage of Justice']

Case Brief

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Procedural Posture

Internal Appeal From a Consumer and Commercial Division Home Building Decision / Appeal Panel Determination of Appeal and Application for Leave to Appeal

Legal Issues

  1. 1 ['Whether the Tribunal at first instance failed to give adequate reasons for preferring replacement over rectification of defective work.' 'Whether the Tribunal erred in law by failing to have regard to section 48MA of the Home Building Act 1989.' 'Whether leave to appeal should be granted on the basis that the decision was against the weight of evidence and may have caused a substantial miscarriage of justice.' 'Whether the Tribunal decision should be confirmed despite an error of law.']

Ratio Decidendi

The Tribunal Member erred in law by failing to have regard to the mandatory consideration in section 48MA of the Home Building Act 1989, but the Appeal Panel confirmed the decision because, even if that principle had been considered, the result would have been no different given findings that the parties' relationship had broken down, the appellants did not acknowledge the poor standard of their work, and the Tribunal Member had severe reservations about their ability to rectify the work with due care and skill. The appellants did not establish inadequate reasons or that the decision was against the weight of evidence, so leave to appeal was refused and the Tribunal decision was confirmed.

Court Disposition

Leave to appeal refused; appeal dismissed; Tribunal decision confirmed; stay discharged.

Orders

  • ['Leave to appeal is refused' 'The Tribunal decision given on 15 March 2016 is confirmed' 'The order made on 28 April 2016 staying the orders made by the Tribunal at first instance on 15 March 2016 is discharged']