Stevenson & Stevenson v Kearns & Kearns t/as DA & SA Kearns Carpentry & Building [2016] NSWCATAP 151

Stevenson & Stevenson v Kearns & Kearns t/as DA & SA Kearns Carpentry & Building [2016] NSWCATAP 151

The appeal was allowed because the Tribunal misapplied the law by applying the s 18F(1)(b) defence without first making the necessary finding whether the respondent builders were responsible for the removal of the cross-bracing and installation of the lateral post, and because the finding that the defence was established was made without evidence that the respondents relied on instructions of a relevant professional.

Jurisdiction
Australia
Judgment Date
27 May 2016
Procedural Posture
Appeal and Application for Leave to Appeal / Appeal Panel From a Consumer and Commercial Division Decision Dated 12 February 2016
Outcome
Appeal allowed; decision set aside; matter remitted for reconsideration by a differently constituted Tribunal.
Legal Topics
['statutory Warranties for Residential Building Work' 'defence Under S 18 F of the Home Building Act 1989' 'error of Law' 'failure to Make Necessary Findings of Fact' 'findings Made Without Evidence' 'extension of Time to Appeal' 'remittal for Rehearing']
['home Building' 'civil Procedure' 'administrative Law'] ['statutory Warranties for Residential Building Work' 'defence Under S 18 F of the Home Building Act 1989' 'error of Law' 'failure to Make Necessary Findings of Fact' 'findings Made Without Evidence' 'extension of Time to Appeal' 'remittal for Rehearing']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Appeal and Application for Leave to Appeal / Appeal Panel From a Consumer and Commercial Division Decision Dated 12 February 2016

Legal Issues

  1. 1 ["Whether the appellants' time in which to appeal should be extended if the appeal was out of time." 'Whether the Tribunal erred by applying s 18F of the Home Building Act 1989 without finding whether the respondents were responsible for removing the cross-bracing and installing the lateral post.' 'Whether the Tribunal made a finding without evidence that the defence in s 18F(1)(b) of the Home Building Act 1989 was established.']

Ratio Decidendi

The appeal was allowed because the Tribunal misapplied the law by applying the s 18F(1)(b) defence without first making the necessary finding whether the respondent builders were responsible for the removal of the cross-bracing and installation of the lateral post, and because the finding that the defence was established was made without evidence that the respondents relied on instructions of a relevant professional.

Court Disposition

Appeal allowed; decision set aside; matter remitted for reconsideration by a differently constituted Tribunal.

Orders

  • ["To the extent necessary the appellants' time in which to appeal is extended to the date of lodgement." 'The decision of Senior Member Cohen dated 12 February 2016 is set aside and the appeal is allowed.' 'The matter is remitted for reconsideration to a differently constituted Tribunal with such additional evidence...