Heritage Master Builders Pty Ltd v Lu [2018] NSWCATAP 16

Heritage Master Builders Pty Ltd v Lu [2018] NSWCATAP 16

The appeal failed because the Tribunal's findings were open on the evidence. The Tribunal did not impermissibly use special knowledge; it relied on the expert reports and photographs showing the treated bricks were orange with dark grey spots while the new brickwork was brown and tan, and was entitled to assess that the 90% match requirement was not met. The expert explained why the second report increased the rectification estimate, and the alleged lack of licence of Sydney Tuck Pointing was not tested evidence from the original hearing and in any event did not undermine Mr Sim's independent opinion, which was supported by other quotations. There was no procedural unfairness because the...

Jurisdiction
Australia
Judgment Date
18 January 2018
Procedural Posture
Home Building Appeal / Appeal Panel Decision on Appeal From the Consumer and Commercial Division
Outcome
Leave to appeal is refused and the appeal is dismissed
Legal Topics
['defective Residential Building Work' 'expert Evidence' 'rectification Costs' 'procedural Fairness' 'leave to Appeal' 'statutory Warranties']
['home Building' 'consumer and Commercial' 'civil Procedure' 'evidence'] ['defective Residential Building Work' 'expert Evidence' 'rectification Costs' 'procedural Fairness' 'leave to Appeal' 'statutory Warranties']

Case Brief

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Procedural Posture

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

Legal Issues

  1. 1 ['Whether the Tribunal erred by accepting expert evidence and photographs to find that the brick colour did not meet the contractual 90% match requirement.' "Whether the Tribunal erred by accepting the second expert report and the rectification cost of $19,250.00 rather than the first report's lower estimate." 'Whether reliance on a quotation from Sydney Tuck Pointing was improper because the appellant alleged that contractor was unlicensed.' 'Whether late provision of the second expert report denied the appellant procedural fairness.' 'Whether the appellant established an error of law or a substantial miscarriage of justice sufficient for leave to appeal.']

Ratio Decidendi

The appeal failed because the Tribunal's findings were open on the evidence. The Tribunal did not impermissibly use special knowledge; it relied on the expert reports and photographs showing the treated bricks were orange with dark grey spots while the new brickwork was brown and tan, and was entitled to assess that the 90% match requirement was not met. The expert explained why the second report increased the rectification estimate, and the alleged lack of licence of Sydney Tuck Pointing was not tested evidence from the original hearing and in any event did not undermine Mr Sim's independent opinion, which was supported by other quotations. There was no procedural unfairness because the...

Court Disposition

Leave to appeal is refused and the appeal is dismissed

Orders

  • ['Leave to appeal is refused and the appeal is dismissed.']