Berger v Boulder Projects Pty Ltd [2015] NSWCATAP 274

Berger v Boulder Projects Pty Ltd [2015] NSWCATAP 274

The appellant was not given a reasonable opportunity to make written submissions because the Tribunal did not rule on the respondent's extension request until it handed down its decision. However, the decision was not set aside because the submissions the appellant said she would have made about fraud could not have affected the outcome: fraud was not pleaded, was not an issue in the proceedings, and the appellant did not appeal against the factual or legal basis of the Tribunal's conclusion that the contract was not intended to be a binding residential building contract with Boulder Projects. The bias ground failed because the Tribunal Member's reference to possibly relevant authorities...

Jurisdiction
Australia
Judgment Date
17 December 2015
Procedural Posture
Internal Appeal From a Consumer and Commercial Division Building Claim Decision / Appeal Panel Decision
Outcome
Appeal dismissed; appellant's and respondent's applications for costs refused.
Legal Topics
['procedural Fairness' 'fair Hearing Rule' 'apprehended Bias' 'tribunal Cross Examination of Witnesses' 'residential Building Work Claim' 'costs']
['administrative Law' 'civil Procedure' 'home Building'] ['procedural Fairness' 'fair Hearing Rule' 'apprehended Bias' 'tribunal Cross Examination of Witnesses' 'residential Building Work Claim' 'costs']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Internal Appeal From a Consumer and Commercial Division Building Claim Decision / Appeal Panel Decision

Legal Issues

  1. 1 ["Whether the Tribunal breached the fair hearing rule by delivering its decision before receiving the appellant's written submissions." 'Whether any breach of the fair hearing rule required the decision to be set aside where the outcome would have been the same.' 'Whether the Tribunal breached the bias rule by referring parties to potentially relevant cases and by asking the appellant a leading question during the hearing.' "Whether the Suitors' Fund Act 1951 (NSW) applied to costs applications in an internal NCAT appeal."]

Ratio Decidendi

The appellant was not given a reasonable opportunity to make written submissions because the Tribunal did not rule on the respondent's extension request until it handed down its decision. However, the decision was not set aside because the submissions the appellant said she would have made about fraud could not have affected the outcome: fraud was not pleaded, was not an issue in the proceedings, and the appellant did not appeal against the factual or legal basis of the Tribunal's conclusion that the contract was not intended to be a binding residential building contract with Boulder Projects. The bias ground failed because the Tribunal Member's reference to possibly relevant authorities...

Court Disposition

Appeal dismissed; appellant's and respondent's applications for costs refused.

Orders

  • ['The appeal is dismissed.' "The appellant's application for costs is refused." "The respondent's application for costs is refused."]