Monument Building Group Pty Ltd v Kapila [2021] NSWCATAP 256

Monument Building Group Pty Ltd v Kapila [2021] NSWCATAP 256

The appellant did not identify any error of law. The Tribunal had considered the evidence of both parties and was entitled to be not satisfied that the alleged agreements were proven; an appeal is not an opportunity to present the evidence again and ask the Appeal Panel to reach a different conclusion. Leave to appeal was also refused because the Appeal Panel was not satisfied that the decision was not fair and equitable, against the weight of evidence, or that significant new evidence had arisen within cl 12(1) of Sch 4 of the Civil and Administrative Tribunal Act 2013.

Jurisdiction
Australia
Judgment Date
30 August 2021
Procedural Posture
Internal Appeal From a Consumer and Commercial Division Home Building Decision / Appeal Panel, on the Papers, Application for Leave to Appeal and Appeal as of Right on Alleged Questions of Law
Outcome
Leave to appeal refused; appeal otherwise dismissed; directions made for any costs submissions by the respondent, appellant, and respondent in reply.
Legal Topics
['internal Appeals' 'error of Law' 'leave to Appeal' 'building Claim Jurisdiction' 'residential Building Work Threshold' 'specialist Work' 'substantial Miscarriage of Justice' 'new Evidence']
['civil Procedure' 'administrative Law' 'home Building'] ['internal Appeals' 'error of Law' 'leave to Appeal' 'building Claim Jurisdiction' 'residential Building Work Threshold' 'specialist Work' 'substantial Miscarriage of Justice' 'new Evidence']

Case Brief

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Procedural Posture

Internal Appeal From a Consumer and Commercial Division Home Building Decision / Appeal Panel, on the Papers, Application for Leave to Appeal and Appeal as of Right on Alleged Questions of Law

Legal Issues

  1. 1 ['Whether the Tribunal made an error of law in finding that it was not satisfied there was an agreement covering the work described in both invoices.' 'Whether the Tribunal erred in its jurisdictional conclusion concerning the first invoice and the second invoice.' 'Whether leave to appeal should be granted under cl 12(1) of Sch 4 of the Civil and Administrative Tribunal Act 2013.' 'Whether material identified by the appellant as new evidence should be taken into account.']

Ratio Decidendi

The appellant did not identify any error of law. The Tribunal had considered the evidence of both parties and was entitled to be not satisfied that the alleged agreements were proven; an appeal is not an opportunity to present the evidence again and ask the Appeal Panel to reach a different conclusion. Leave to appeal was also refused because the Appeal Panel was not satisfied that the decision was not fair and equitable, against the weight of evidence, or that significant new evidence had arisen within cl 12(1) of Sch 4 of the Civil and Administrative Tribunal Act 2013.

Court Disposition

Leave to appeal refused; appeal otherwise dismissed; directions made for any costs submissions by the respondent, appellant, and respondent in reply.

Orders

  • ['Leave to appeal is refused.' 'The appeal is otherwise dismissed.' 'If the respondent wishes to make submissions as to costs of this appeal, the respondent is to provide written submissions of no more than 5 pages to the Appeal Panel and the appellant within 14 days of the date of this decision addressing whether...