Nationwide Builders Pty Ltd v Le Roy [2019] NSWCATAP 220

Nationwide Builders Pty Ltd v Le Roy [2019] NSWCATAP 220

Leave to appeal to argue a new point regarding rent was refused as its late introduction would prejudice unrepresented respondents, and the preferred outcome principle in s 48MA Home Building Act does not mandate rectification where the builder has failed to remedy defects over an extended period and the owners have reasonably lost confidence. The Tribunal's decision to prefer the evidence of Mr Capaldi over Mr Grieve (served late and not tested in hearing) was justified and not procedurally unfair.

Parties
Appellant: Nationwide Builders Pty Ltd; Respondent: Grace Le Roy; Respondent: Jose Le Roy
Jurisdiction
Australia
Judgment Date
30 August 2019
Procedural Posture
Appeal / Leave to Appeal and Appeal Determination
Outcome
Leave to appeal refused; appeal dismissed.
Legal Topics
Rectification and Completion Costs, Damages for Late Completion, Order Making Power Under S 48 O of Home Building Act, Application of Preferred Outcome Principle
Home Building Civil Procedure Rectification and Completion Costs Damages for Late Completion Order Making Power Under S 48 O of Home Building Act Application of Preferred Outcome Principle

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Parties

Nationwide Builders Pty Ltd

Appellant

Grace Le Roy

Respondent

Jose Le Roy

Respondent

Procedural Posture

Appeal / Leave to Appeal and Appeal Determination

Legal Issues

  1. 1 Whether leave to appeal should be granted to raise a new ground relating to rent awarded prior to the extended completion date in the Deed
  2. 2 Whether the Tribunal at first instance erred in law by not applying Section 48MA of Home Building Act 1989 (NSW) as to rectification being the preferred outcome
  3. 3 Whether the Tribunal afforded appropriate weight to competing expert reports on quantum/rectification

Ratio Decidendi

Leave to appeal to argue a new point regarding rent was refused as its late introduction would prejudice unrepresented respondents, and the preferred outcome principle in s 48MA Home Building Act does not mandate rectification where the builder has failed to remedy defects over an extended period and the owners have reasonably lost confidence. The Tribunal's decision to prefer the evidence of Mr Capaldi over Mr Grieve (served late and not tested in hearing) was justified and not procedurally unfair.

Court Disposition

Leave to appeal refused; appeal dismissed.

Orders

  • Leave to appeal is refused.
  • The Appeal is dismissed.