Maygood Australia Pty Ltd v The Owners – Strata Plan No 85338 [2020] NSWCATAP 237

Maygood Australia Pty Ltd v The Owners – Strata Plan No 85338 [2020] NSWCATAP 237

Section 48J of the Home Building Act 1989 (NSW) is not a jurisdictional precondition—the Tribunal had jurisdiction to hear the claim. Refusal to permit late amendment of pleadings was justified to prevent unfairness, and liability for both the balcony tiles and fire dampers was sufficiently established on the...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
16 November 2020
Procedural Posture
Appeal / Decision on Appeal From Tribunal Decision, Orders on Varied Compensation and Leave to Appeal Refused
Outcome
Appeal allowed in part (only as to correction of compensation amount for tiles); all other grounds dismissed; leave to appeal otherwise refused.
Legal Topics
['home Building Act' 'statutory Warranties' 'tribunal Jurisdiction' 'amendment of Pleadings' 'evidence and Weight' 'common Property in Strata Schemes' 'fire Safety Compliance' 'consumer Law']
['building and Construction' 'strata Law'] ['home Building Act' 'statutory Warranties' 'tribunal Jurisdiction' 'amendment of Pleadings' 'evidence and Weight' 'common Property in Strata Schemes' 'fire Safety Compliance' 'consumer Law']

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Procedural Posture

Appeal / Decision on Appeal From Tribunal Decision, Orders on Varied Compensation and Leave to Appeal Refused

Legal Issues

  1. 1 ['Whether the Tribunal had jurisdiction to hear the owners’ claim despite non-compliance with s 48J of the Home Building Act 1989 (NSW)' 'Whether the Tribunal erred in refusing Maygood leave to amend its Points of Defence and rely on a further affidavit' 'Whether there was evidence to support liability findings against Maygood for balcony tiling rectification and fire damper rectification' 'Whether the assessment of compensation for the tiles and fire dampers was correct']

Ratio Decidendi

Section 48J of the Home Building Act 1989 (NSW) is not a jurisdictional precondition—the Tribunal had jurisdiction to hear the claim. Refusal to permit late amendment of pleadings was justified to prevent unfairness, and liability for both the balcony tiles and fire dampers was sufficiently established on the evidence, with compensation correctly recalculated for the tiling, but otherwise no appellable error shown.

Court Disposition

Appeal allowed in part (only as to correction of compensation amount for tiles); all other grounds dismissed; leave to appeal otherwise refused.

Orders

  • ['Appeal allowed in part.' "Vary Order 1 of the orders made on 16 December 2019 to read: 'In application HB17/51531 the respondent is ordered to pay the applicant $66,581.51 within 28 days of the date of publication of the decision in AP20/01565'." 'Leave to appeal is refused.' 'The appeal is otherwise dismissed.'...