GMI Construction Pty Ltd v Keshavarz [2024] NSWCATAP 68

GMI Construction Pty Ltd v Keshavarz [2024] NSWCATAP 68

Leave to appeal from the refusal of the adjournment was refused because the adjournment request was made late, was not supported by satisfactory evidence, the Building Company was on notice that the request would be determined at the hearing and could have attended through a director, agent or another solicitor, and no reasonably clear injustice or miscarriage of discretion was shown. The remaining appeal grounds failed because the Appeal Panel could not find a no-evidence error without the transcript or all evidence before the Tribunal, and in any event the expert and photographic evidence supported findings that the challenged waterproofing defects were major defects giving the Tribunal...

Jurisdiction
Australia
Judgment Date
01 May 2024
Procedural Posture
Appeal From a Consumer and Commercial Division Decision on a Home Building Claim / Appeal Panel Decision
Outcome
Leave to appeal from the adjournment refusal was refused and the appeal was otherwise dismissed.
Legal Topics
['procedural Fairness in Refusal of Adjournment' 'leave to Appeal From Interlocutory Decision' 'ncat Jurisdiction for Building Claims' 'statutory Warranties Under the Home Building Act 1989 (nsw)' 'major Defects' 'no Evidence Ground' 'construction of Home Building Contract']
['administrative Law' 'civil Procedure' 'home Building' 'consumer Law'] ['procedural Fairness in Refusal of Adjournment' 'leave to Appeal From Interlocutory Decision' 'ncat Jurisdiction for Building Claims' 'statutory Warranties Under the Home Building Act 1989 (nsw)' 'major Defects' 'no Evidence Ground' 'construction of Home Building Contract']

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Procedural Posture

Appeal From a Consumer and Commercial Division Decision on a Home Building Claim / Appeal Panel Decision

Legal Issues

  1. 1 ["Whether leave should be granted to appeal from the interlocutory decision refusing the Building Company's adjournment application." 'Whether refusal of the adjournment application denied the Building Company procedural fairness or involved a miscarriage of discretion.' 'Whether the Tribunal had jurisdiction to determine claims for defects alleged to be outside the two-year warranty period because they were not major defects.' 'Whether there was probative evidence to support findings that items 2, 4, 5, 6, 7, 9, 11 and 12 were major defects.' 'Whether the Tribunal erred in finding that GMI Construction Pty Ltd was a party to the home building contract.']

Ratio Decidendi

Leave to appeal from the refusal of the adjournment was refused because the adjournment request was made late, was not supported by satisfactory evidence, the Building Company was on notice that the request would be determined at the hearing and could have attended through a director, agent or another solicitor, and no reasonably clear injustice or miscarriage of discretion was shown. The remaining appeal grounds failed because the Appeal Panel could not find a no-evidence error without the transcript or all evidence before the Tribunal, and in any event the expert and photographic evidence supported findings that the challenged waterproofing defects were major defects giving the Tribunal...

Court Disposition

Leave to appeal from the adjournment refusal was refused and the appeal was otherwise dismissed.

Orders

  • ["Leave to appeal from the decision to refuse the appellant's adjournment application is refused." 'The appeal is otherwise dismissed.' 'The stay order made on 6 October 2023 is lifted.' 'The time for compliance with the order made on 6 July 2023 that the GMI Construction Pty Ltd pay the homeowners the sum of...