Oppidan Homes Pty Ltd v Baldwin and Granofsky [2016] NSWCATAP 109

Oppidan Homes Pty Ltd v Baldwin and Granofsky [2016] NSWCATAP 109

The Appeal Panel found the Tribunal failed to take account of relevant evidence supporting eight items, constituting an error of law; also allowed leave and appeal regarding calculation error for electrical work. However, challenge to inclusion of builder's margin and GST was not permissible as that issue was not squarely raised at first instance and the principles of finality and conduct of case applied.

Parties
Appellant: Oppidan Homes Pty Ltd; Respondent: Mark Baldwin; Respondent: Margery Granofsky
Jurisdiction
Australia
Judgment Date
18 May 2016
Procedural Posture
Civil Appeal / Appellate Decision
Outcome
Appeal upheld in part; leave to appeal granted in part
Legal Topics
Provisional Sums and Prime Cost Items, Builder's Margin and GST in Rectification Costs, Error of Law, Evidence in Tribunal Proceedings
Home Building Consumer and Commercial Law Provisional Sums and Prime Cost Items Builder's Margin and GST in Rectification Costs Error of Law Evidence in Tribunal Proceedings

Case Brief

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Parties

Oppidan Homes Pty Ltd

Appellant

Mark Baldwin

Respondent

Margery Granofsky

Respondent

Procedural Posture

Civil Appeal / Appellate Decision

Legal Issues

  1. 1 Whether the Tribunal erred in rejecting claims in respect of eight items for provisional sums and PC items by failing to consider source documents in evidence.
  2. 2 Whether the Tribunal erred in calculation of the allowance for electrical work.
  3. 3 Whether inclusion of builder's margin and GST in rectification damages was wrong given the builder was denied access to the site.

Ratio Decidendi

The Appeal Panel found the Tribunal failed to take account of relevant evidence supporting eight items, constituting an error of law; also allowed leave and appeal regarding calculation error for electrical work. However, challenge to inclusion of builder's margin and GST was not permissible as that issue was not squarely raised at first instance and the principles of finality and conduct of case applied.

Court Disposition

Appeal upheld in part; leave to appeal granted in part

Orders

  • Leave to appeal is granted in part.
  • Appeal upheld in part.