N & T Buildings Pty Ltd v Ball [2017] NSWCATAP 234

N & T Buildings Pty Ltd v Ball [2017] NSWCATAP 234

There was no error of law or principle found in the Tribunal’s reasoning; the decision was founded upon the correct application of the statutory warranty provisions and applicable standards, the handling of expert evidence was not procedurally unfair, the credibility findings were within permissible bounds, and the refusal to make a rectification order was a proper exercise of discretion based on the evidence of non-compliance and the builder’s history.

Parties
Appellant: N & T Buildings Pty Ltd; Respondents: Clifford and Carmel Ball
Jurisdiction
Australia
Judgment Date
20 December 2017
Procedural Posture
Appeal / Appeal Panel Decision
Outcome
Appeal dismissed; leave to appeal refused where necessary; stay order lifted
Legal Topics
Expert Evidence, Exercise of Discretion, Procedural Fairness, Rectification Order, Standard of Proof, Statutory Warranties
Building and Construction Consumer Law Expert Evidence Exercise of Discretion Procedural Fairness Rectification Order Standard of Proof Statutory Warranties

Case Brief

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Parties

N & T Buildings Pty Ltd

Appellant

Clifford and Carmel Ball

Respondents

Procedural Posture

Appeal / Appeal Panel Decision

Legal Issues

  1. 1 Whether the Tribunal erred in the application of the correct Australian Standard and APZA Report under the Development Consent
  2. 2 Whether the Tribunal erred in admitting and acting upon the expert report of Malcolm Gray regarding costs
  3. 3 Whether the Tribunal erred in credibility assessment regarding evidence of Mr Gray

Ratio Decidendi

There was no error of law or principle found in the Tribunal’s reasoning; the decision was founded upon the correct application of the statutory warranty provisions and applicable standards, the handling of expert evidence was not procedurally unfair, the credibility findings were within permissible bounds, and the refusal to make a rectification order was a proper exercise of discretion based on the evidence of non-compliance and the builder’s history.

Court Disposition

Appeal dismissed; leave to appeal refused where necessary; stay order lifted

Orders

  • Leave to appeal where necessary refused.
  • Appeal is dismissed.