Jankovic v Chandershekar [2017] NSWCATAP 193

Jankovic v Chandershekar [2017] NSWCATAP 193

There was no denial of procedural fairness because the builder's representative knew the builder's signed statement was not in the court book, confirmed reliance on it, accepted the hearing had to be adjourned, and had an opportunity to submit that costs should be reserved. The Member properly exercised the costs discretion by ordering the builder to pay 50% of the owners' costs thrown away by the adjournment caused by the builder's failure to serve and file the signed statement with annexures. The alleged 4 April 2016 email was not significant new evidence that was not reasonably available at the hearing, so the requirements for leave to appeal were not met.

Jurisdiction
Australia
Judgment Date
29 September 2017
Procedural Posture
Internal Appeal in NSW Civil and Administrative Tribunal Appeal Panel Concerning Costs Order in Home Building Act Proceedings / Leave to Appeal and Appeal From Orders Made on 29 June 2017
Outcome
Leave to appeal refused; appeal dismissed; no order as to costs.
Legal Topics
['adjournment of Hearing' 'costs Thrown Away' 'procedural Fairness' 'leave to Appeal' 'exercise of Costs Discretion']
['civil Procedure' 'costs' 'home Building' 'administrative Tribunal Appeals'] ['adjournment of Hearing' 'costs Thrown Away' 'procedural Fairness' 'leave to Appeal' 'exercise of Costs Discretion']

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Procedural Posture

Internal Appeal in NSW Civil and Administrative Tribunal Appeal Panel Concerning Costs Order in Home Building Act Proceedings / Leave to Appeal and Appeal From Orders Made on 29 June 2017

Legal Issues

  1. 1 ['Whether the Tribunal Member denied the builder procedural fairness by making a costs thrown away order instead of reserving costs.' "Whether the Member's costs discretion miscarried under the principles in House v The King (1936) 55 CLR 499." 'Whether leave to appeal should be granted on the basis of significant new evidence or substantial miscarriage of justice under cl 12 of Sch 4 to the Civil and Administrative Tribunal Act 2013.' 'Whether costs of the appeal should be ordered in favour of the successful respondents.']

Ratio Decidendi

There was no denial of procedural fairness because the builder's representative knew the builder's signed statement was not in the court book, confirmed reliance on it, accepted the hearing had to be adjourned, and had an opportunity to submit that costs should be reserved. The Member properly exercised the costs discretion by ordering the builder to pay 50% of the owners' costs thrown away by the adjournment caused by the builder's failure to serve and file the signed statement with annexures. The alleged 4 April 2016 email was not significant new evidence that was not reasonably available at the hearing, so the requirements for leave to appeal were not met.

Court Disposition

Leave to appeal refused; appeal dismissed; no order as to costs.

Orders

  • ['Leave to appeal refused.' 'Appeal dismissed.' 'No order as to costs.']