Mick Fabar Constructions Pty Ltd v Robert Symes & Kim Louise Filmer [2015] NSWCATAP 123

Mick Fabar Constructions Pty Ltd v Robert Symes & Kim Louise Filmer [2015] NSWCATAP 123

The Appeal Panel held that the Tribunal Member's refusal to make a work order did not involve error of law because the Member considered the history of the dispute, the prior work order, the renewal application as evidence of ongoing dispute rather than as a finding of liability, and the parties' inability to cooperate. Those were relevant matters to the discretionary question whether a work order would bring finality or create further disputation. The Tribunal Member also gave adequate reasons for preferring the Respondents' expert rectification method for the water tanks; the omission to name Mr Roe or refer expressly to Exhibit K did not undermine the decision because Mr Roe had not...

Jurisdiction
Australia
Judgment Date
26 June 2015
Procedural Posture
Appeal From NCAT Consumer and Commercial Division Home Building Decision / Application for Leave to Appeal and Appeal Before the NCAT Appeal Panel
Outcome
The application for leave to appeal was dismissed and the appeal was dismissed.
Legal Topics
['work Order Pursuant to S48 O of the Home Building Act 1989' 'exercise of Discretion to Make a Work Order' 'rectification of Defective Building Work' 'adequacy of Reasons' 'procedural Fairness' 'water Tank Installation Defects']
['administrative Law' 'home Building' 'civil and Administrative Tribunal Appeals'] ['work Order Pursuant to S48 O of the Home Building Act 1989' 'exercise of Discretion to Make a Work Order' 'rectification of Defective Building Work' 'adequacy of Reasons' 'procedural Fairness' 'water Tank Installation Defects']

Case Brief

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Procedural Posture

Appeal From NCAT Consumer and Commercial Division Home Building Decision / Application for Leave to Appeal and Appeal Before the NCAT Appeal Panel

Legal Issues

  1. 1 ['Whether the Tribunal Member should have made a work order with respect to further works relating to the water tanks.' "Whether the Tribunal erred in accepting the costs of rectification determined by the Respondents' expert for the defective work relating to the installation of the water tanks." 'Whether the refusal to make a work order involved irrelevant considerations, denial of procedural fairness, inadequate reasons, or other error of law.' 'Whether leave to appeal should be granted on the basis of a substantial miscarriage of justice.']

Ratio Decidendi

The Appeal Panel held that the Tribunal Member's refusal to make a work order did not involve error of law because the Member considered the history of the dispute, the prior work order, the renewal application as evidence of ongoing dispute rather than as a finding of liability, and the parties' inability to cooperate. Those were relevant matters to the discretionary question whether a work order would bring finality or create further disputation. The Tribunal Member also gave adequate reasons for preferring the Respondents' expert rectification method for the water tanks; the omission to name Mr Roe or refer expressly to Exhibit K did not undermine the decision because Mr Roe had not...

Court Disposition

The application for leave to appeal was dismissed and the appeal was dismissed.

Orders

  • ['The application for leave be dismissed.' 'The appeal be dismissed.' 'Each party pay its own costs of the appeal, unless, within 21 days, either party makes an application for a different order, in which event the costs will be reserved.' 'In the event that either party seeks an order as to costs in its favour, the...