Sewell v Bush [2019] NSWCATAP 161

Sewell v Bush [2019] NSWCATAP 161

The Tribunal at first instance denied procedural fairness and made an error of law by deciding the Flooring claim on the basis of Mr Bush's liability for defects when liability had been conceded and the sole issue for determination was quantum. It also failed to exercise jurisdiction by failing to decide that quantum. The Appeal Panel set aside the original decision and, applying the parties' concessions and agreed quantum for the Flooring claim, ordered Mr Bush to pay Ms Sewell the net sum of $2,032.50.

Jurisdiction
Australia
Judgment Date
01 July 2019
Procedural Posture
Appeal From Civil and Administrative Tribunal, Consumer and Commercial Division, Home Building Applications / Appeal Panel Decision
Outcome
Appeal allowed; decision and orders at first instance set aside; final orders made requiring Mr Bush to pay Ms Sewell $2,032.50 and permitting Ms Sewell to seek payment out of the sum deposited for the stay application.
Legal Topics
['breach of Contract' 'quantum of Damages' 'procedural Fairness' 'rectification Costs' 'defective Flooring']
['contracts' 'home Building' 'administrative Law'] ['breach of Contract' 'quantum of Damages' 'procedural Fairness' 'rectification Costs' 'defective Flooring']

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Procedural Posture

Appeal From Civil and Administrative Tribunal, Consumer and Commercial Division, Home Building Applications / Appeal Panel Decision

Legal Issues

  1. 1 ['Whether the Tribunal at first instance denied procedural fairness by determining liability for defective flooring when the parties had confined the issue to quantum.' 'Whether the Tribunal at first instance failed to exercise jurisdiction by not determining the quantum of damages for the Flooring claim.' 'What quantum of damages should be allowed for the Flooring claim and the net result after set-off.']

Ratio Decidendi

The Tribunal at first instance denied procedural fairness and made an error of law by deciding the Flooring claim on the basis of Mr Bush's liability for defects when liability had been conceded and the sole issue for determination was quantum. It also failed to exercise jurisdiction by failing to decide that quantum. The Appeal Panel set aside the original decision and, applying the parties' concessions and agreed quantum for the Flooring claim, ordered Mr Bush to pay Ms Sewell the net sum of $2,032.50.

Court Disposition

Appeal allowed; decision and orders at first instance set aside; final orders made requiring Mr Bush to pay Ms Sewell $2,032.50 and permitting Ms Sewell to seek payment out of the sum deposited for the stay application.

Orders

  • ['The appeal is allowed.' 'The decision and the orders in claim numbers HB 18/17256 and HB 18/34797, published on 27 March 2019, are set aside.' 'In finalisation of both matters together, Gregory Bush must pay to Lynette Sewell the sum of $2,032.50 on or before 18 July 2019.' 'Lynette Sewell has leave to seek the...