Thornton v Desire Constructions Pty Ltd [2020] NSWCATAP 116

Thornton v Desire Constructions Pty Ltd [2020] NSWCATAP 116

Leave to appeal from the substantive decision was refused because the transcript and materials did not establish procedural unfairness, bias or conflict causing unfairness, a decision against the weight of evidence, or significant new evidence that was not reasonably available at the hearing. The costs appeal succeeded because the first instance Tribunal erred in law by determining the rule 38(2)(b) threshold by reference to the amount claimed at the end of the hearing. The amount claimed or in dispute was to be assessed by reference to the application or commencement of the hearing, and the appellant's application claimed more than $30,000. Rule 38(2)(b) therefore applied and the...

Jurisdiction
Australia
Judgment Date
19 June 2020
Procedural Posture
Home Building Appeal Concerning Defective Building Work Damages and Costs / Appeal Panel; Application for Leave to Appeal From the 22 January 2020 Decision and Appeal From the 20 March 2020 Costs Decision
Outcome
Costs appeal allowed; costs decision set aside and substituted with a lump sum costs order for the appellant; leave to appeal refused.
Legal Topics
['leave to Appeal' 'procedural Fairness' 'against the Weight of Evidence' 'significant New Evidence' 'costs in Consumer and Commercial Division Proceedings' 'rule 38 of the Civil and Administrative Tribunal Rules 2014' 'defective Residential Building Work']
['civil Procedure' 'costs' 'home Building' 'administrative Law'] ['leave to Appeal' 'procedural Fairness' 'against the Weight of Evidence' 'significant New Evidence' 'costs in Consumer and Commercial Division Proceedings' 'rule 38 of the Civil and Administrative Tribunal Rules 2014' 'defective Residential Building Work']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Home Building Appeal Concerning Defective Building Work Damages and Costs / Appeal Panel; Application for Leave to Appeal From the 22 January 2020 Decision and Appeal From the 20 March 2020 Costs Decision

Legal Issues

  1. 1 ['Whether the appellant was denied procedural fairness because she was pressured or rushed into relying on the Vertigo Roofing quote dated 28 June 2019.' 'Whether the Tribunal decision on damages was against the weight of evidence.' 'Whether significant new evidence had arisen that was not reasonably available at the time of the hearing.' "Whether the respondent's expert was biased or affected by a conflict of interest such that the hearing was not fair and equitable." 'At what point the amount claimed or in dispute is ascertained for the purpose of rule 38(2)(b) of the Civil and Administrative Tribunal Rules 2014.' 'Whether the costs decision proceeded on an error of law by requiring special circumstances under s 60 of the Civil and Administrative Tribunal Act 2013.']

Ratio Decidendi

Leave to appeal from the substantive decision was refused because the transcript and materials did not establish procedural unfairness, bias or conflict causing unfairness, a decision against the weight of evidence, or significant new evidence that was not reasonably available at the hearing. The costs appeal succeeded because the first instance Tribunal erred in law by determining the rule 38(2)(b) threshold by reference to the amount claimed at the end of the hearing. The amount claimed or in dispute was to be assessed by reference to the application or commencement of the hearing, and the appellant's application claimed more than $30,000. Rule 38(2)(b) therefore applied and the...

Court Disposition

Costs appeal allowed; costs decision set aside and substituted with a lump sum costs order for the appellant; leave to appeal refused.

Orders

  • ['A hearing on the costs appeal is dispensed with pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013.' 'The costs decision made on 20 March 2020 in the proceedings at first instance is set aside.' 'Desire Constructions Pty Ltd must pay Leanne Thornton the sum of $11,446.77 being her costs of the...