Houston v Phillips trading as Arise Building Services [2024] NSWCATAP 213

Houston v Phillips trading as Arise Building Services [2024] NSWCATAP 213

The Appeal Panel found the Tribunal committed errors of law by failing to award damages inclusive of preliminaries, builder's margin and GST for uncontested defective items; omitting conceded defective item 5; failing to address and order delivery of the blackbutt flooring; and failing to give sufficient reasons or adequately determine the Owner's overpayment and contested defects claims. The appeal was allowed, orders were substituted to reduce the amount payable to the Builder and require the delivery of the blackbutt flooring, and the remaining contested claims were remitted for redetermination.

Parties
Appellant: Louise Houston; Respondent: NL Phillips & MR Phillips trading as Arise Building Services
Jurisdiction
Australia
Judgment Date
30 October 2024
Procedural Posture
NCAT Appeal / Appeal Panel Decision
Outcome
Appeal allowed; orders of the Tribunal set aside partly substituted and partly remitted for further determination.
Legal Topics
Procedural Fairness, Damages Assessment, Right to Accrued Payments, Overpayment in Building Contracts, Expert Evidence, Breach of Contract
Civil Law Building and Construction Law Procedural Fairness Damages Assessment Right to Accrued Payments Overpayment in Building Contracts Expert Evidence Breach of Contract

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Parties

Louise Houston

Appellant

NL Phillips & MR Phillips trading as Arise Building Services

Respondent

Procedural Posture

NCAT Appeal / Appeal Panel Decision

Legal Issues

  1. 1 Whether the Tribunal erred in failing to award preliminaries, margin and GST on defects found
  2. 2 Whether the Tribunal erred in failing to resolve the blackbutt flooring issue
  3. 3 Whether the Tribunal erred in not allowing the Owner's claims for defective work and overpayment because the Builder terminated the contract

Ratio Decidendi

The Appeal Panel found the Tribunal committed errors of law by failing to award damages inclusive of preliminaries, builder's margin and GST for uncontested defective items; omitting conceded defective item 5; failing to address and order delivery of the blackbutt flooring; and failing to give sufficient reasons or adequately determine the Owner's overpayment and contested defects claims. The appeal was allowed, orders were substituted to reduce the amount payable to the Builder and require the delivery of the blackbutt flooring, and the remaining contested claims were remitted for redetermination.

Court Disposition

Appeal allowed; orders of the Tribunal set aside partly substituted and partly remitted for further determination.

Orders

  • The appeal is allowed.
  • The decision under appeal is set aside.