Howe v NSW Coastal Homes Pty Ltd [2016] NSWCATAP 127

Howe v NSW Coastal Homes Pty Ltd [2016] NSWCATAP 127

Leave to appeal was granted for both appeals because the Tribunal erred by not including establishment and insurance costs and GST as substantiated in evidence, and to a limited extent in procedural fairness regarding submissions on the form of order. However, the substantive monetary order was confirmed, not replaced by a rectification order, and the builder was ordered to pay the remaining amount reflecting establishment/insurance and GST.

Jurisdiction
Australia
Judgment Date
16 June 2016
Procedural Posture
Internal Appeal (home Building Dispute) / Appeal Panel Determination After Leave Granted on Both Appeal and Cross Appeal
Outcome
Leave to appeal granted for both main appeal and cross-appeal; builder's appeal dismissed; cross-appeal upheld on quantum; payment orders confirmed and varied.
Legal Topics
['internal Appeals' 'procedural Fairness' 'rectification Orders' 'statutory Interpretation' 'home Building Statutory Warranties' 'remedies in Building Disputes']
['administrative Law' 'building and Construction Law'] ['internal Appeals' 'procedural Fairness' 'rectification Orders' 'statutory Interpretation' 'home Building Statutory Warranties' 'remedies in Building Disputes']

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Procedural Posture

Internal Appeal (home Building Dispute) / Appeal Panel Determination After Leave Granted on Both Appeal and Cross Appeal

Legal Issues

  1. 1 ['Whether leave to appeal should be granted for both appeal and cross-appeal' 'Whether the Tribunal erred by not making a rectification order instead of a monetary order' 'Whether exclusion of establishment/insurance costs and failure to account for GST constituted error' 'Whether there was a denial of procedural fairness in not hearing further submissions on the nature of the orders']

Ratio Decidendi

Leave to appeal was granted for both appeals because the Tribunal erred by not including establishment and insurance costs and GST as substantiated in evidence, and to a limited extent in procedural fairness regarding submissions on the form of order. However, the substantive monetary order was confirmed, not replaced by a rectification order, and the builder was ordered to pay the remaining amount reflecting establishment/insurance and GST.

Court Disposition

Leave to appeal granted for both main appeal and cross-appeal; builder's appeal dismissed; cross-appeal upheld on quantum; payment orders confirmed and varied.

Orders

  • ['AP 15/65418: Leave to appeal granted; appeal dismissed.' 'AP 15/66881: Leave to appeal granted; order for payment of $41,700 by NSW Coastal Homes Pty Ltd to AJ Howe and JM Howe confirmed; NSW Coastal Homes Pty Ltd to pay AJ Howe and JM Howe an additional sum of $11,794.11 within 28 days.' 'No order as to costs.']