Emmery v Smith [2015] NSWCATAP 212

Emmery v Smith [2015] NSWCATAP 212

The appellant did not establish any question of law or basis for leave to appeal. The Tribunal's findings that the required insurance was not established at the hearing were correct on the material before it, and the later-produced certificate did not show sufficient compliance because it was dated after the contract and substantial work, stated a different contract price, and was not shown to have been provided by the appellant to the respondent. Given the findings of wilful, deliberate and dishonest conduct concerning insurance, and evidence that the appellant's work was sub-standard, unnecessary and had to be removed, there was no error in refusing quantum meruit recovery and ordering...

Jurisdiction
Australia
Judgment Date
30 September 2015
Procedural Posture
Home Building Appeal / Application for Leave to Appeal and Appeal From Consumer and Commercial Division Decision
Outcome
Time for lodging the Notice of Appeal extended; application for leave to appeal dismissed; appeal dismissed; no award of costs in respect of the appeal.
Legal Topics
['residential Building Work' 'home Warranty Insurance' 'quantum Meruit' 'leave to Appeal' 'question of Law' 'substantial Miscarriage of Justice' 'rectification Damages' 'costs Discretion']
['home Building' 'civil Procedure' 'administrative Law' 'costs'] ['residential Building Work' 'home Warranty Insurance' 'quantum Meruit' 'leave to Appeal' 'question of Law' 'substantial Miscarriage of Justice' 'rectification Damages' 'costs Discretion']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Home Building Appeal / Application for Leave to Appeal and Appeal From Consumer and Commercial Division Decision

Legal Issues

  1. 1 ['Whether the Tribunal erred in finding that the appellant had failed to obtain required insurance and provide a certificate of insurance under the Home Building Act 1989 (NSW).' 'Whether the Tribunal erred in refusing to find it just and equitable to allow the appellant a quantum meruit claim and ordering refund of $12,000.00.' 'Whether the Tribunal erred in awarding rectification costs that the appellant said included work not performed by him.' 'Whether leave to appeal should be granted on the basis of a substantial miscarriage of justice.' "Whether there was appellable error in the order that the appellant pay 75% of the respondent's costs below." 'Whether special circumstances warranted a costs order for the appeal.']

Ratio Decidendi

The appellant did not establish any question of law or basis for leave to appeal. The Tribunal's findings that the required insurance was not established at the hearing were correct on the material before it, and the later-produced certificate did not show sufficient compliance because it was dated after the contract and substantial work, stated a different contract price, and was not shown to have been provided by the appellant to the respondent. Given the findings of wilful, deliberate and dishonest conduct concerning insurance, and evidence that the appellant's work was sub-standard, unnecessary and had to be removed, there was no error in refusing quantum meruit recovery and ordering...

Court Disposition

Time for lodging the Notice of Appeal extended; application for leave to appeal dismissed; appeal dismissed; no award of costs in respect of the appeal.

Orders

  • ['Extend time for lodging Notice of Appeal to 25 June 2014.' 'Application for leave to appeal dismissed.' 'Appeal dismissed.' 'No award of costs in respect of the appeal.']