Ottaviano v Indorato [2020] NSWCATAP 22

Ottaviano v Indorato [2020] NSWCATAP 22

The extension of time to appeal was refused because the lengthy delay was not satisfactorily explained, there would be prejudice to the respondent, and the builder's case did not possess more substantial merit than merely being fairly arguable. The appeal was dismissed because no error warranting leave to appeal was demonstrated, including on grounds about responsibility for the rear patio, evidence, and quantum. The costs decision was also not subject to a satisfactory appeal explanation and leave was refused.

Jurisdiction
Australia
Judgment Date
19 February 2020
Procedural Posture
Internal Appeal From NSW Civil and Administrative Tribunal, Consumer and Commercial Division / Final Decision (extension of Time and Appeal Determination)
Outcome
Appeal dismissed; extension of time refused
Legal Topics
['extension of Time for Appeal' 'leave to Appeal' 'defective Building Works' 'costs Orders' 'contract Variations']
['tribunal Appeals' 'building and Construction Law' 'contract Law'] ['extension of Time for Appeal' 'leave to Appeal' 'defective Building Works' 'costs Orders' 'contract Variations']

Case Brief

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Procedural Posture

Internal Appeal From NSW Civil and Administrative Tribunal, Consumer and Commercial Division / Final Decision (extension of Time and Appeal Determination)

Legal Issues

  1. 1 ['Should the Tribunal grant an extension of time for the appeal?' 'Did the Tribunal err in finding the builder liable for defects in the rear patio?' 'Was the costs order properly made?' 'Did the Tribunal err in accepting the homeowner’s expert evidence over the builder’s?' 'Was the builder responsible for defective/incomplete works listed in the Scott Schedule?']

Ratio Decidendi

The extension of time to appeal was refused because the lengthy delay was not satisfactorily explained, there would be prejudice to the respondent, and the builder's case did not possess more substantial merit than merely being fairly arguable. The appeal was dismissed because no error warranting leave to appeal was demonstrated, including on grounds about responsibility for the rear patio, evidence, and quantum. The costs decision was also not subject to a satisfactory appeal explanation and leave was refused.

Court Disposition

Appeal dismissed; extension of time refused

Orders

  • ['Application for an extension of time to lodge the appeal is refused.' 'The appeal is dismissed.']