Xpertise Construction Pty Ltd v Orantia [2023] NSWCATAP 22

Xpertise Construction Pty Ltd v Orantia [2023] NSWCATAP 22

The application to extend time was refused because the appellants provided an inadequate explanation for a delay of about 77 days after the appeal period expired, had already been able to lodge a set-aside application shortly after the original decision, and their proposed grounds of appeal were unmeritorious and not reasonably arguable. The primary decision was within the Tribunal's powers under s 48O of the Home Building Act 1989 (NSW), and there was no demonstrated error on a question of law or sufficient basis for leave to appeal. Costs were ordered on the indemnity basis because the appeal had no tenable basis in fact or law.

Jurisdiction
Australia
Judgment Date
01 February 2023
Procedural Posture
Internal Appeal Under S 80(2) of the Civil and Administrative Tribunal Act 2013 (nsw) From a Consumer and Commercial Division Home Building Decision / Application to Extend Time to Appeal Before the Appeal Panel
Outcome
The application to extend time to appeal was dismissed, with indemnity costs ordered in favour of the respondent.
Legal Topics
['extension of Time to Appeal' 'internal Appeals' 'questions of Law' 'leave to Appeal' 'substantial Miscarriage of Justice' 'indemnity Costs' 'calderbank Letter']
['administrative Law' 'civil Procedure' 'home Building' 'costs'] ['extension of Time to Appeal' 'internal Appeals' 'questions of Law' 'leave to Appeal' 'substantial Miscarriage of Justice' 'indemnity Costs' 'calderbank Letter']

Case Brief

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Procedural Posture

Internal Appeal Under S 80(2) of the Civil and Administrative Tribunal Act 2013 (nsw) From a Consumer and Commercial Division Home Building Decision / Application to Extend Time to Appeal Before the Appeal Panel

Legal Issues

  1. 1 ['Whether time should be extended for the appellants to lodge the Notice of Appeal.' 'Whether the proposed appeal demonstrated an error on a question of law or grounds warranting leave to appeal.' 'Whether the Tribunal erred by ordering that $161,545.28 was not due or owing by the respondent.' 'Whether the respondent should receive costs, including costs on an indemnity basis.']

Ratio Decidendi

The application to extend time was refused because the appellants provided an inadequate explanation for a delay of about 77 days after the appeal period expired, had already been able to lodge a set-aside application shortly after the original decision, and their proposed grounds of appeal were unmeritorious and not reasonably arguable. The primary decision was within the Tribunal's powers under s 48O of the Home Building Act 1989 (NSW), and there was no demonstrated error on a question of law or sufficient basis for leave to appeal. Costs were ordered on the indemnity basis because the appeal had no tenable basis in fact or law.

Court Disposition

The application to extend time to appeal was dismissed, with indemnity costs ordered in favour of the respondent.

Orders

  • ['The application to extend time to appeal is dismissed.' "The appellants are to pay the respondent's costs of the appeal including the application to extend time to appeal, as agreed or assessed, on the indemnity basis."]