John McDonald Building Services Pty Ltd v Gusa [2022] NSWCATAP 60

John McDonald Building Services Pty Ltd v Gusa [2022] NSWCATAP 60

The appeal was allowed because the Tribunal failed to consider the builder's substantial contention that clause 4 of the building contract entitled it to terminate the contract before physical commencement of the works. That issue was central to the findings of misleading or deceptive conduct and required factual and legal determination, including any response based on waiver, affirmation, representation or estoppel. The Appeal Panel also held that the Tribunal's jurisdiction to award damages for ACL misleading or deceptive conduct under the Fair Trading Act 1987 (NSW) was limited to $40,000 and was not expanded to $500,000 merely because the claim arose in a building dispute. The...

Jurisdiction
Australia
Judgment Date
07 March 2022
Procedural Posture
Appeal From Orders in Home Building Proceedings in the Consumer and Commercial Division of the Civil and Administrative Tribunal / Appeal Panel Decision on Appeal Against Orders Made on 11 August 2021
Outcome
Appeal allowed; orders of 11 August 2021 set aside; money order made for rectification of defective works; balance remitted for rehearing; costs reserved.
Legal Topics
['procedural Fairness' 'failure to Have Regard to a Relevant Consideration' 'scope of Right of Appeal' 'monetary Jurisdictional Limits of Tribunal' 'misleading or Deceptive Conduct' 'hearsay Opinion Evidence' 'termination of Building Contract' 'work Order or Money Order for Defective Residential Building Work']
['administrative Law' 'building and Construction' 'consumer Law' 'contract Law' 'evidence' 'civil Procedure'] ['procedural Fairness' 'failure to Have Regard to a Relevant Consideration' 'scope of Right of Appeal' 'monetary Jurisdictional Limits of Tribunal' 'misleading or Deceptive Conduct' 'hearsay Opinion Evidence' 'termination of Building Contract' 'work Order or Money Order for Defective Residential Building Work']

Case Brief

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Procedural Posture

Appeal From Orders in Home Building Proceedings in the Consumer and Commercial Division of the Civil and Administrative Tribunal / Appeal Panel Decision on Appeal Against Orders Made on 11 August 2021

Legal Issues

  1. 1 ['Whether the builder required leave to appeal or raised questions of law under s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW).' "Whether the Tribunal denied procedural fairness or otherwise erred by failing to consider the builder's contention that it was entitled to terminate the contract under clause 4." 'Whether the Tribunal erred in construing the contract and concluding that, as at 7 June 2017, the builder was not entitled to terminate the contract.' 'Whether, on the proper construction of sections 74(3) and 79S of the Fair Trading Act 1987 (NSW), the Tribunal had jurisdiction to award damages for misleading or deceptive conduct in excess of $40,000.' 'Whether reliance on Procoat Group quotations for landscaping works denied the builder procedural fairness or breached s 38(2) or s 38(4) of the Civil and Administrative Tribunal Act 2013 (NSW).' 'Whether the Tribunal should have made a work order rather than a money order having regard to s 48MA of the Home Building Act 1989 (NSW).']

Ratio Decidendi

The appeal was allowed because the Tribunal failed to consider the builder's substantial contention that clause 4 of the building contract entitled it to terminate the contract before physical commencement of the works. That issue was central to the findings of misleading or deceptive conduct and required factual and legal determination, including any response based on waiver, affirmation, representation or estoppel. The Appeal Panel also held that the Tribunal's jurisdiction to award damages for ACL misleading or deceptive conduct under the Fair Trading Act 1987 (NSW) was limited to $40,000 and was not expanded to $500,000 merely because the claim arose in a building dispute. The...

Court Disposition

Appeal allowed; orders of 11 August 2021 set aside; money order made for rectification of defective works; balance remitted for rehearing; costs reserved.

Orders

  • ['The appeal is allowed.' 'The orders of the Tribunal of 11 August 2021 are set aside.' 'The Appellant forthwith pay to the Respondents the sum of $58,382.24 for the rectification of defective works.' 'The balance of the proceedings be remitted for rehearing according to law.' 'Costs are reserved.' 'That within 7...