Garofali v Moshkovich [2021] NSWCATAP 242

Garofali v Moshkovich [2021] NSWCATAP 242

The builder did not establish any error of law or basis for leave to appeal. The material did not show that the builder had raised before the Tribunal a separate or collateral contract claim or a quantum meruit claim, and the builder could not raise such new arguments on appeal. The builder also did not show that claimed additional amounts were valid variations under the written contract. The Tribunal was entitled to reject Mr Hall's supplementary report after he changed his opinion following the joint expert conclave. The Appeal Panel was not satisfied that the decision was not fair and equitable or against the weight of evidence.

Jurisdiction
Australia
Judgment Date
13 August 2021
Procedural Posture
Appeal From a Decision of the Consumer and Commercial Division of the Civil and Administrative Tribunal Involving Proceedings Under the Home Building Act 1989 (nsw) / Application for Leave to Appeal and Appeal
Outcome
Leave to appeal refused; appeal dismissed.
Legal Topics
['home Building Act 1989 (nsw)' 'residential Building Contract' 'contract Variations' 'quantum Meruit' 'expert Evidence' 'statutory Warranties' 'leave to Appeal' 'adjournment']
['building and Construction' 'residential Building Work' 'administrative Law'] ['home Building Act 1989 (nsw)' 'residential Building Contract' 'contract Variations' 'quantum Meruit' 'expert Evidence' 'statutory Warranties' 'leave to Appeal' 'adjournment']

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Procedural Posture

Appeal From a Decision of the Consumer and Commercial Division of the Civil and Administrative Tribunal Involving Proceedings Under the Home Building Act 1989 (nsw) / Application for Leave to Appeal and Appeal

Legal Issues

  1. 1 ['Whether the Tribunal failed to consider a quantum meruit claim or a claim under a separate contract for work outside the written contract dated 18 July 2019.' 'Whether payments made by the owners were outside the written contract or recoverable or creditable to the owners as overpayments.' 'Whether the builder established that additional amounts claimed were valid contractual variations.' "Whether the Tribunal erred in rejecting the supplementary report of the builder's expert, Mr Hall, dated 25 November 2020." 'Whether leave to appeal should be granted on the basis that the decision was not fair and equitable or was against the weight of evidence.']

Ratio Decidendi

The builder did not establish any error of law or basis for leave to appeal. The material did not show that the builder had raised before the Tribunal a separate or collateral contract claim or a quantum meruit claim, and the builder could not raise such new arguments on appeal. The builder also did not show that claimed additional amounts were valid variations under the written contract. The Tribunal was entitled to reject Mr Hall's supplementary report after he changed his opinion following the joint expert conclave. The Appeal Panel was not satisfied that the decision was not fair and equitable or against the weight of evidence.

Court Disposition

Leave to appeal refused; appeal dismissed.

Orders

  • ['Leave to appeal is refused.' 'The appeal is dismissed.']