Jing Sun v Jun Li; Jun Li v Jing Sun [2016] NSWCATAP 112

Jing Sun v Jun Li; Jun Li v Jing Sun [2016] NSWCATAP 112

Leave to appeal was generally refused because the challenges to the Tribunal's findings on defective work, GST and home warranty insurance disclosed no error warranting appellate intervention. The Owner was granted limited relief because the Tribunal failed to determine his claim for provision of certificates or related material and failed to hear him on costs, the latter being a denial of procedural fairness and an error of law. The Builder's appeal disclosed no identified error and amounted to dissatisfaction with the Tribunal's decision.

Jurisdiction
Australia
Judgment Date
23 May 2016
Procedural Posture
Appeals From NCAT Consumer and Commercial Division Home Building Proceedings / Appeal Panel; Applications for Leave to Appeal
Outcome
Owner's appeal in AP 16/00765 allowed in part on grounds 5 and 6, otherwise leave refused and appeal dismissed; Builder's appeal in AP 16/04789 refused leave and dismissed.
Legal Topics
['leave to Appeal' 'home Warranty Insurance' 'procedural Fairness' 'costs' 'defective Residential Building Work' 'rectification Damages' 'building Certificates']
['home Building' 'civil Procedure' 'administrative Law'] ['leave to Appeal' 'home Warranty Insurance' 'procedural Fairness' 'costs' 'defective Residential Building Work' 'rectification Damages' 'building Certificates']

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

Appeals From NCAT Consumer and Commercial Division Home Building Proceedings / Appeal Panel; Applications for Leave to Appeal

Legal Issues

  1. 1 ['Whether leave to appeal should be granted on grounds challenging factual findings about defective building work and rectification costs.' "Whether the Tribunal erred by not dealing with the Owner's request for termite, waterproofing and plumbing certificates or related material." 'Whether the Tribunal denied procedural fairness by failing to hear the Owner on costs and expert fees.' 'Whether alleged inadequacy in the declared Home Warranty Insurance contract price prevented an order that the Owner pay GST to the Builder.' 'Whether leave should be granted to the Builder to challenge findings that items 7, 8 and 9 were within the contract works and that amounts were payable for defective work.']

Ratio Decidendi

Leave to appeal was generally refused because the challenges to the Tribunal's findings on defective work, GST and home warranty insurance disclosed no error warranting appellate intervention. The Owner was granted limited relief because the Tribunal failed to determine his claim for provision of certificates or related material and failed to hear him on costs, the latter being a denial of procedural fairness and an error of law. The Builder's appeal disclosed no identified error and amounted to dissatisfaction with the Tribunal's decision.

Court Disposition

Owner's appeal in AP 16/00765 allowed in part on grounds 5 and 6, otherwise leave refused and appeal dismissed; Builder's appeal in AP 16/04789 refused leave and dismissed.

Orders

  • ['In AP 16/00765, leave to appeal on ground 5 is granted and the appeal is allowed on that ground.' 'In AP 16/00765, appeal allowed on ground 6.' "The matter is remitted to the Tribunal as previously constituted to consider and determine whether the Builder should provide to the Owner the certificates as sought in...