Madic Construction Pty Ltd v Noble [2023] NSWCATAP 130

Madic Construction Pty Ltd v Noble [2023] NSWCATAP 130

Leave was granted and the appeal allowed in part because the Tribunal made several renewed work orders despite no evidence, or evidence against the finding, that the original orders had not been complied with, and because adding certification or supervision requirements did not in the circumstances make the renewed orders materially different or appropriate under Sch 4 cl 8. The Appeal Panel found that orders 1(3), 1(4), 1(6), 1(8), 1(9), 1(10) and 1(12) should be set aside; order 1(5) should be varied to require painting by a specified date without certification; and agreed variations should be made for orders 1(7) and 1(11).

Jurisdiction
Australia
Judgment Date
12 May 2023
Procedural Posture
Internal Appeal in Home Building Renewal Proceedings / Appeal Panel Appeal From Consumer and Commercial Division Decision Dated 4 November 2022
Outcome
Leave to appeal granted; appeal allowed in part; orders made varying the orders of 4 November 2022.
Legal Topics
['internal Appeal' 'renewal Proceedings' 'work Orders' 'against the Weight of Evidence' 'residential Building Work']
['civil Procedure' 'home Building' 'administrative Law'] ['internal Appeal' 'renewal Proceedings' 'work Orders' 'against the Weight of Evidence' 'residential Building Work']

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Procedural Posture

Internal Appeal in Home Building Renewal Proceedings / Appeal Panel Appeal From Consumer and Commercial Division Decision Dated 4 November 2022

Legal Issues

  1. 1 ['Whether leave to appeal should be granted under cl 12 of Sch 4 to the Civil and Administrative Tribunal Act 2013 (NSW).' 'Whether the Tribunal erred by making renewal work orders that were not materially different from the original orders or were unsupported by evidence of non-compliance.' 'Whether particular renewed work orders were against the weight of evidence because the builder had complied or was prevented from complying by the owners.' 'Whether the Tribunal could add requirements for certification or supervision in renewed orders where the original orders did not require certification.']

Ratio Decidendi

Leave was granted and the appeal allowed in part because the Tribunal made several renewed work orders despite no evidence, or evidence against the finding, that the original orders had not been complied with, and because adding certification or supervision requirements did not in the circumstances make the renewed orders materially different or appropriate under Sch 4 cl 8. The Appeal Panel found that orders 1(3), 1(4), 1(6), 1(8), 1(9), 1(10) and 1(12) should be set aside; order 1(5) should be varied to require painting by a specified date without certification; and agreed variations should be made for orders 1(7) and 1(11).

Court Disposition

Leave to appeal granted; appeal allowed in part; orders made varying the orders of 4 November 2022.

Orders

  • ['Leave to appeal is allowed.' 'The orders made on 4 November 2022 are varied.' 'Order (3) made on 4 November 2022 is set aside.' 'Order (4) made on 4 November 2022 is set aside.' 'Order (5) made on 4 November 2022 is varied to: Paint the garage fascia including required priming and hole filling by 16 June 2023.'...