JCK Building Solutions Pty Ltd v Marr [2019] NSWCATAP 122

JCK Building Solutions Pty Ltd v Marr [2019] NSWCATAP 122

Leave to appeal was refused because no error of law was shown and the purported 'new evidence' was reasonably available at the initial hearing and did not establish a substantial miscarriage of justice or contradict the central factual findings about the builder's obligations regarding warnings/discussions with the owners. The original work orders were justified based on the evidence and submissions at first instance, including the builder's concession to replace structural posts and failure to warn about tiling fall problems.

Jurisdiction
Australia
Judgment Date
09 May 2019
Procedural Posture
Appeal / Leave to Appeal and Dismissal of Appeal
Outcome
Leave to appeal refused and appeal dismissed
Legal Topics
['defective Building Work' 'work Orders' 'statutory Warranties' 'fresh Evidence on Appeal' 'procedural Fairness']
['building and Construction' 'consumer Law'] ['defective Building Work' 'work Orders' 'statutory Warranties' 'fresh Evidence on Appeal' 'procedural Fairness']

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Procedural Posture

Appeal / Leave to Appeal and Dismissal of Appeal

Legal Issues

  1. 1 ['Whether the Tribunal erred in making work orders regarding replacement of structural posts and tiling/remediation of bathrooms' 'Whether new evidence warranted leave to appeal' 'Whether there was a denial of procedural fairness or error of law']

Ratio Decidendi

Leave to appeal was refused because no error of law was shown and the purported 'new evidence' was reasonably available at the initial hearing and did not establish a substantial miscarriage of justice or contradict the central factual findings about the builder's obligations regarding warnings/discussions with the owners. The original work orders were justified based on the evidence and submissions at first instance, including the builder's concession to replace structural posts and failure to warn about tiling fall problems.

Court Disposition

Leave to appeal refused and appeal dismissed

Orders

  • ['Extend the time for lodgement of the appeal to 7 January 2019' 'Leave to appeal is refused' 'The appeal is dismissed']