Robert Symes and Kim Louise Filmer v Mick Fabar Constructions Pty Ltd [2015] NSWCATCD 77

Robert Symes and Kim Louise Filmer v Mick Fabar Constructions Pty Ltd [2015] NSWCATCD 77

The renewal proceedings were not confined to determining non-compliance and converting the consent work orders into money orders. Under s 43 of the Consumer Trader & Tenancy Tribunal Act 2001 the Tribunal could make any other appropriate order it could have made when the matter was originally determined, or refuse to make an order. Although the consent orders created an estoppel, its scope depended on the parties' agreement and did not exclude evidence about compliance, continuing necessity, impossibility, impracticability, prevention by the applicants, or appropriate alternative orders. The requirement that work be completed to the satisfaction of the owners' experts did not make Mr...

Jurisdiction
Australia
Judgment Date
30 June 2015
Procedural Posture
Home Building Claim Renewal Application Concerning Consent Work Orders / Procedural Ruling on the Scope of the Renewal Hearing, Heard on the Papers
Outcome
The Tribunal determined that the scope of the renewal proceedings included the identified issues about conversion to money orders, compliance, necessity, prevention, impossibility or impracticability, required expert opinion and any other relevant issues asserted by a party; the matter was to be listed for further...
Legal Topics
['renewal of Proceedings' 'consent Work Orders' 'issue Estoppel' 'conversion of Work Orders to Money Orders' 'expert Evidence' "satisfaction of Owners' Experts"]
['administrative Law' 'home Building' 'civil Procedure'] ['renewal of Proceedings' 'consent Work Orders' 'issue Estoppel' 'conversion of Work Orders to Money Orders' 'expert Evidence' "satisfaction of Owners' Experts"]

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Home Building Claim Renewal Application Concerning Consent Work Orders / Procedural Ruling on the Scope of the Renewal Hearing, Heard on the Papers

Legal Issues

  1. 1 ['Whether the renewal application was limited to determining compliance with the consent work orders and converting them into money orders.' 'Whether the respondent was estopped by the consent orders from calling evidence challenging the necessity, practicability or satisfactory completion of the ordered works.' "Whether completion to the satisfaction of the owners' experts required only the subjective satisfaction of Mr Finnane or an expert opinion that was appropriately based and objectively reasonable." 'Whether evidence about compliance, prevention by the applicants, impossibility, impracticability, necessity of works and types of expert opinion was relevant to the renewal hearing.']

Ratio Decidendi

The renewal proceedings were not confined to determining non-compliance and converting the consent work orders into money orders. Under s 43 of the Consumer Trader & Tenancy Tribunal Act 2001 the Tribunal could make any other appropriate order it could have made when the matter was originally determined, or refuse to make an order. Although the consent orders created an estoppel, its scope depended on the parties' agreement and did not exclude evidence about compliance, continuing necessity, impossibility, impracticability, prevention by the applicants, or appropriate alternative orders. The requirement that work be completed to the satisfaction of the owners' experts did not make Mr...

Court Disposition

The Tribunal determined that the scope of the renewal proceedings included the identified issues about conversion to money orders, compliance, necessity, prevention, impossibility or impracticability, required expert opinion and any other relevant issues asserted by a party; the matter was to be listed for further...

Orders

  • ['The scope of the renewal proceedings includes whether it is appropriate to convert the work order, or any particular item within the work order, into a money order.' 'The scope of the renewal proceedings includes whether any of the works have been complied with.' 'The scope of the renewal proceedings includes...