Vella v Mir [2019] NSWCATAP 28

Vella v Mir [2019] NSWCATAP 28

Appeal allowed in part because Tribunal erred in treating 'major defect' as limitation defence instead of jurisdictional issue under s 18E; Tribunal failed to provide adequate reasoning addressing statutory definition and evidence, particularly for items 3, 6, and 7; Tribunal incorrectly failed to consider s 18F defence regarding bi-fold doors; John Vella removed as improperly joined party; costs orders set aside as re-determination may change outcome.

Parties
Appellant: Joyce Vella; Appellant: John Vella; First Respondent: Sidney Mir; First Respondent: Marie Mir; Second Respondent: Brownlow Hill Building Services t/as Cathayne Constructions
Jurisdiction
Australia
Judgment Date
31 January 2019
Procedural Posture
Internal Appeal Under Civil and Administrative Tribunal Act 2013 S 80(2) / Appeal Panel Decision
Outcome
Appeal allowed in part; orders set aside; remittal for directions; costs to be determined on further application.
Legal Topics
Statutory Warranty, Major Defect, Limitation Period, Jurisdiction, Evidence, Procedural Fairness, Jones V Dunkel Inference, S 18 F Defence
Home Building Tribunal Procedure Statutory Warranty Major Defect Limitation Period Jurisdiction Evidence Procedural Fairness +2 more

Case Brief

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Parties

Joyce Vella

Appellant

John Vella

Appellant

Sidney Mir

First Respondent

Marie Mir

First Respondent

Brownlow Hill Building Services t/as Cathayne Constructions

Second Respondent

Procedural Posture

Internal Appeal Under Civil and Administrative Tribunal Act 2013 S 80(2) / Appeal Panel Decision

Legal Issues

  1. 1 Was John Vella properly liable in respect of statutory warranty?
  2. 2 Were Tribunal's findings regarding major defect and limitation period correct under s 18E?
  3. 3 Did Tribunal fail to provide adequate reasons regarding major defect definition?

Ratio Decidendi

Appeal allowed in part because Tribunal erred in treating 'major defect' as limitation defence instead of jurisdictional issue under s 18E; Tribunal failed to provide adequate reasoning addressing statutory definition and evidence, particularly for items 3, 6, and 7; Tribunal incorrectly failed to consider s 18F defence regarding bi-fold doors; John Vella removed as improperly joined party; costs orders set aside as re-determination may change outcome.

Court Disposition

Appeal allowed in part; orders set aside; remittal for directions; costs to be determined on further application.

Orders

  • The appeal is allowed in part.
  • The orders made on 13 March 2018 and 10 May 2018 in proceedings HB 16/34141 are set aside.