Brown v Tourni [2019] NSWCATAP 204

Brown v Tourni [2019] NSWCATAP 204

The Appeal Panel found no error of law in relation to the Seely Report because the transcript did not show that the Senior Member ruled that the report would be disregarded or that it had been withdrawn. However, the Tribunal failed to consider the appellant's issue that defects to the concrete slab and PVC branch drain arose from the respondent's attempted compliance with the work order. That failure amounted to an error of law based on insufficiency of reasons, requiring the order to be set aside and the renewal application remitted for redetermination on that issue.

Jurisdiction
Australia
Judgment Date
09 August 2019
Procedural Posture
Internal Appeal in Home Building Proceedings / Appeal Panel Decision on Appeal From Tribunal Renewal Application Decision
Outcome
Appeal allowed; Tribunal order set aside; renewal application remitted for redetermination in accordance with the reasons.
Legal Topics
['renewal Application' 'adequacy of Reasons' 'procedural Fairness' 'internal Appeal' 'defective Building Work']
['administrative Law' 'home Building' 'consumer and Commercial Proceedings'] ['renewal Application' 'adequacy of Reasons' 'procedural Fairness' 'internal Appeal' 'defective Building Work']

Case Brief

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Procedural Posture

Internal Appeal in Home Building Proceedings / Appeal Panel Decision on Appeal From Tribunal Renewal Application Decision

Legal Issues

  1. 1 ['Whether the Tribunal erred by taking into consideration the Seely Report which the appellant said had been withdrawn at the outset of the hearing.' "Whether the Tribunal failed to consider the appellant's claim that the respondent caused defects to the concrete slab and PVC branch drain while undertaking work to comply with the consent work order." "Whether leave should be granted on the ground that the decision was against the weight of evidence because the Tribunal considered the respondent's costings rather than the appellant's expert evidence."]

Ratio Decidendi

The Appeal Panel found no error of law in relation to the Seely Report because the transcript did not show that the Senior Member ruled that the report would be disregarded or that it had been withdrawn. However, the Tribunal failed to consider the appellant's issue that defects to the concrete slab and PVC branch drain arose from the respondent's attempted compliance with the work order. That failure amounted to an error of law based on insufficiency of reasons, requiring the order to be set aside and the renewal application remitted for redetermination on that issue.

Court Disposition

Appeal allowed; Tribunal order set aside; renewal application remitted for redetermination in accordance with the reasons.

Orders

  • ['The appeal is allowed.' 'Order 1 made by the Tribunal in matter HB 18/31241 is set aside and the matter is remitted to the Tribunal to re-determine the renewal application in accordance with these reasons.']