Egan v Egan [2023] NSWCATCD 10

Egan v Egan [2023] NSWCATCD 10

The applicant had twice been unable to meet the respondent's jurisdictional arguments after the matter had already been listed for final hearing, and granting an adjournment to allow further evidence would not be consistent with the guiding principle in s 36 of the Civil and Administrative Tribunal Act 2013 (NSW). On the filed evidence, there was no evidence supporting the alleged oral contract or that the respondent received reward or other consideration for supervising owner-builder work. The claim therefore failed as a building claim at the threshold and was misconceived or lacking in substance, making an adjournment futile.

Jurisdiction
Australia
Judgment Date
04 January 2023
Procedural Posture
Building and Construction Application Alleging Defective Building Work Under the Home Building Act 1989 (nsw) / Interlocutory Hearing on Application to Adjourn, Application to File Further Evidence, and Respondent's Application for Dismissal Under S 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (nsw)
Outcome
The applicant's application to adjourn and file further evidence was refused, and the proceedings were dismissed as misconceived or lacking in substance.
Legal Topics
['owner Builder Work' 'statutory Warranties' 'building Claim Jurisdiction' 'summary Dismissal' 'adjournment' 'further Evidence' 'guiding Principle Under S 36 of the Civil and Administrative Tribunal Act 2013 (nsw)']
['building and Construction' 'civil Procedure' 'administrative Law'] ['owner Builder Work' 'statutory Warranties' 'building Claim Jurisdiction' 'summary Dismissal' 'adjournment' 'further Evidence' 'guiding Principle Under S 36 of the Civil and Administrative Tribunal Act 2013 (nsw)']

Case Brief

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Procedural Posture

Building and Construction Application Alleging Defective Building Work Under the Home Building Act 1989 (nsw) / Interlocutory Hearing on Application to Adjourn, Application to File Further Evidence, and Respondent's Application for Dismissal Under S 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (nsw)

Legal Issues

  1. 1 ['Whether the applicant should be granted an adjournment and leave to file further evidence.' 'Whether the primary application should be dismissed under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) as misconceived or lacking in substance.' 'Whether the applicant had a viable claim based on an alleged oral contract with the respondent.' "Whether the applicant could rely on successor in title provisions after transfer of the respondent's interest in the property." "Whether the claim was a 'building claim' within the Home Building Act 1989 (NSW), given the exclusion for supervision only of owner-builder work for no reward or other consideration."]

Ratio Decidendi

The applicant had twice been unable to meet the respondent's jurisdictional arguments after the matter had already been listed for final hearing, and granting an adjournment to allow further evidence would not be consistent with the guiding principle in s 36 of the Civil and Administrative Tribunal Act 2013 (NSW). On the filed evidence, there was no evidence supporting the alleged oral contract or that the respondent received reward or other consideration for supervising owner-builder work. The claim therefore failed as a building claim at the threshold and was misconceived or lacking in substance, making an adjournment futile.

Court Disposition

The applicant's application to adjourn and file further evidence was refused, and the proceedings were dismissed as misconceived or lacking in substance.

Orders

  • ["The applicant's application to adjourn the proceedings and to file further evidence is refused." 'The proceedings are dismissed.' "If either party seeks a costs order other than the applicant pay the respondent's costs of the proceedings, including the reserved costs of 16 November 2022, they should file...