Nova Home Developments Pty Ltd v Manzala [2021] NSWCATAP 287

Nova Home Developments Pty Ltd v Manzala [2021] NSWCATAP 287

The finding that there were active termites at the premises at the time of inspection was against the weight of the evidence; procedural fairness was denied as the appellant was not given the opportunity to cross-examine the respondent or her witnesses, resulting in practical injustice.

Jurisdiction
Australia
Judgment Date
23 September 2021
Procedural Posture
Appeal / Appeal Panel Decision
Outcome
Appeal allowed, leave to appeal granted, orders set aside, matter remitted for redetermination.
Legal Topics
['procedural Fairness' 'appeals' 'assessment of Damages' 'negligence' 'home Inspection Reports']
['civil Procedure' 'consumer Law'] ['procedural Fairness' 'appeals' 'assessment of Damages' 'negligence' 'home Inspection Reports']

Case Brief

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Procedural Posture

Appeal / Appeal Panel Decision

Legal Issues

  1. 1 ['Whether procedural fairness was denied by refusal to allow cross-examination' "Whether the Tribunal's finding regarding termite activity at time of inspection was against the weight of the evidence" 'Proper assessment of damages and betterment' 'Failure to apply Home Building Act 1989 (NSW)' 'Whether the claim was limited by contract']

Ratio Decidendi

The finding that there were active termites at the premises at the time of inspection was against the weight of the evidence; procedural fairness was denied as the appellant was not given the opportunity to cross-examine the respondent or her witnesses, resulting in practical injustice.

Court Disposition

Appeal allowed, leave to appeal granted, orders set aside, matter remitted for redetermination.

Orders

  • ['Leave to appeal is granted.' 'Appeal allowed.' 'The stay of 13 July 2021 is lifted.' 'The orders of the Tribunal in HB 20/53830 are set aside.' 'Remit the matter to a differently constituted Tribunal for redetermination upon the evidence already adduced to the Tribunal at first instance and such further evidence...