RBV Builders Pty Ltd v Chedra [2021] NSWCATAP 56

RBV Builders Pty Ltd v Chedra [2021] NSWCATAP 56

The Appeal Panel refused leave and dismissed both appeals because the Tribunal made no identified error of law and its conclusions were not shown to be not fair and equitable or against the weight of evidence. The contract requirement to build to the manufacturer's specification required compliance with the Dincel Construction Manual and did not incorporate oral site-specific instructions; on that basis the builder did not comply with the written contractual requirement and could not succeed on its s 18F argument. The Tribunal's reasons and findings on the Scott Schedule defects and work order disclosed no appealable error. The costs order requiring the builder to pay 80% of the owners'...

Jurisdiction
Australia
Judgment Date
11 March 2021
Procedural Posture
Internal Appeal in Home Building Proceedings / Appeal Panel Decision on Appeal From Consumer and Commercial Division Decision and Costs Decision
Outcome
Leave to appeal refused and appeal dismissed in both AP 20/09081 and AP 20/18109.
Legal Topics
['home Building Act 1989 (nsw) Statutory Warranties' 'section 18 F Defences' 'plans and Specifications' 'contract Drawings as Instructions' 'leave to Appeal' 'costs Apportionment']
['building and Construction' 'home Building' 'costs' 'civil Procedure'] ['home Building Act 1989 (nsw) Statutory Warranties' 'section 18 F Defences' 'plans and Specifications' 'contract Drawings as Instructions' 'leave to Appeal' 'costs Apportionment']

Case Brief

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Procedural Posture

Internal Appeal in Home Building Proceedings / Appeal Panel Decision on Appeal From Consumer and Commercial Division Decision and Costs Decision

Legal Issues

  1. 1 ["Whether the Tribunal erred in construing the contract requirement that Dincel walls be built to the manufacturer's specification as requiring compliance with the Dincel Construction Manual unaffected by oral site-specific instructions." 'Whether contract drawings constituted instructions given in writing for the purposes of s 18F(1)(b) of the Home Building Act 1989 (NSW).' 'Whether the Tribunal failed to give adequate reasons or failed to determine causation in relation to alleged defects in the Scott Schedule.' 'Whether the Tribunal addressed wrong issues, failed to deal with arguments, or took irrelevant considerations into account in finding breaches of statutory warranty.' "Whether the Tribunal erred in ordering the builder to pay 80% of the owners' costs and $34,944.25 for investigation expenses."]

Ratio Decidendi

The Appeal Panel refused leave and dismissed both appeals because the Tribunal made no identified error of law and its conclusions were not shown to be not fair and equitable or against the weight of evidence. The contract requirement to build to the manufacturer's specification required compliance with the Dincel Construction Manual and did not incorporate oral site-specific instructions; on that basis the builder did not comply with the written contractual requirement and could not succeed on its s 18F argument. The Tribunal's reasons and findings on the Scott Schedule defects and work order disclosed no appealable error. The costs order requiring the builder to pay 80% of the owners'...

Court Disposition

Leave to appeal refused and appeal dismissed in both AP 20/09081 and AP 20/18109.

Orders

  • ['In AP 20/09081: Leave to appeal refused.' 'In AP 20/09081: Appeal dismissed.' "In AP 20/09081: Unless either party files written submissions seeking a different order within 14 days of the date of publication of this decision, the appellant is to pay the respondent's costs of the appeal as agreed or assessed." 'In...