Fantastic Cement Rendering Pty Ltd v Virtuoso Construction Services Pty Ltd [2022] NSWCATAP 237

Fantastic Cement Rendering Pty Ltd v Virtuoso Construction Services Pty Ltd [2022] NSWCATAP 237

The appeal was dismissed because the proposed new evidence was not shown to be reasonably unavailable or significant, and would have created unfairness after the appellant had not cross-examined on the relevant topic; the Tribunal's finding that the internal rate was $65 per m2 was open on the evidence and was supported by unchallenged evidence and invoice material; the appellant identified no question of law or appealable error in relation to the findings about coats applied, quantum meruit, the cross-claim, estoppel, or invoices 17, 26, 28 and 32; and the Appeal Panel had no power to award first instance costs where no application had been made below.

Jurisdiction
Australia
Judgment Date
19 July 2022
Procedural Posture
Building and Construction Appeal From NSW Civil and Administrative Tribunal, Consumer and Commercial Division / Appeal Panel Decision on Appeal and Application to Tender New Evidence
Outcome
Appeal dismissed; respondent's name amended; costs process directions made.
Legal Topics
['quantum Meruit' 'quantification' 'new Evidence on Appeal' 'credibility Findings' 'browne V Dunne' 'equitable Estoppel' 'joinder and Amendment of Party Name' 'costs of Appeal']
['building and Construction' 'civil Procedure' 'administrative Law' 'costs'] ['quantum Meruit' 'quantification' 'new Evidence on Appeal' 'credibility Findings' 'browne V Dunne' 'equitable Estoppel' 'joinder and Amendment of Party Name' 'costs of Appeal']

Case Brief

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Procedural Posture

Building and Construction Appeal From NSW Civil and Administrative Tribunal, Consumer and Commercial Division / Appeal Panel Decision on Appeal and Application to Tender New Evidence

Legal Issues

  1. 1 ['Whether the appellant should be permitted to tender new expert evidence on appeal' 'Whether the internal render rate was $85 per m2 or $65 per m2' 'Whether only three coats of render were applied internally' 'Whether the Tribunal erred in quantifying quantum meruit recovery' "Whether the Tribunal erred in relation to the respondent's cross-claim" 'Whether an equitable estoppel set-off was established' "Whether the respondent's name should be amended" 'Whether error was shown in relation to invoices 17, 26, 28 and 32' 'Whether the Appeal Panel could award costs of the first instance proceedings' 'What process should apply for any costs application on the appeal']

Ratio Decidendi

The appeal was dismissed because the proposed new evidence was not shown to be reasonably unavailable or significant, and would have created unfairness after the appellant had not cross-examined on the relevant topic; the Tribunal's finding that the internal rate was $65 per m2 was open on the evidence and was supported by unchallenged evidence and invoice material; the appellant identified no question of law or appealable error in relation to the findings about coats applied, quantum meruit, the cross-claim, estoppel, or invoices 17, 26, 28 and 32; and the Appeal Panel had no power to award first instance costs where no application had been made below.

Court Disposition

Appeal dismissed; respondent's name amended; costs process directions made.

Orders

  • ['The name of the respondent is amended to "Virtuoso Construction Services Pty Ltd".' 'Appeal dismissed.' 'If any party desires to make an application for costs of the appeal different to the order foreshadowed in these reasons, the applicant for a different costs order is to lodge with the Appeal Panel and serve on...