Seraglio v Le Sommet Pty Ltd [2021] NSWCATAP 150

Seraglio v Le Sommet Pty Ltd [2021] NSWCATAP 150

The appellant bore the onus of proving the alleged oral variation. The Appeal Panel was not persuaded that the Tribunal's rejection of the alleged oral variation was erroneous, because the finding depended on oral evidence, was not shown to be contrary to incontrovertible facts or compelling inferences, and the written variation clause was relevant to the parties' intention. The Tribunal's reasons met the minimum acceptable standard because they identified the contractual clause, the disputed oral evidence, and the basis for concluding that Payment 3 was due under the written contract.

Jurisdiction
Australia
Judgment Date
26 May 2021
Procedural Posture
Home Building Contract Appeal / Appeal From Civil and Administrative Tribunal, Consumer and Commercial Division Decision Dated 22 February 2021
Outcome
Appeal dismissed.
Legal Topics
['home Building Contract' 'progress Payment' 'alleged Oral Variation' 'no Oral Modification Clause' 'adequacy of Reasons' 'procedural Fairness' 'appeal From Findings of Fact']
['building and Construction' 'contract Law' 'administrative Appeals'] ['home Building Contract' 'progress Payment' 'alleged Oral Variation' 'no Oral Modification Clause' 'adequacy of Reasons' 'procedural Fairness' 'appeal From Findings of Fact']

Case Brief

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Procedural Posture

Home Building Contract Appeal / Appeal From Civil and Administrative Tribunal, Consumer and Commercial Division Decision Dated 22 February 2021

Legal Issues

  1. 1 ['Whether the Tribunal erred in finding that it was not satisfied that the parties orally varied the contract so that Payment 3 was payable only when the pool was swimmable.' "Whether the Tribunal's reasons on the alleged oral variation were inadequate."]

Ratio Decidendi

The appellant bore the onus of proving the alleged oral variation. The Appeal Panel was not persuaded that the Tribunal's rejection of the alleged oral variation was erroneous, because the finding depended on oral evidence, was not shown to be contrary to incontrovertible facts or compelling inferences, and the written variation clause was relevant to the parties' intention. The Tribunal's reasons met the minimum acceptable standard because they identified the contractual clause, the disputed oral evidence, and the basis for concluding that Payment 3 was due under the written contract.

Court Disposition

Appeal dismissed.

Orders

  • ['Appeal dismissed.']