Ferraro v Lambert [2017] NSWCATAP 162

Ferraro v Lambert [2017] NSWCATAP 162

The Appeal Panel held that the appellant was inadvertently misled by the Tribunal's orders of 2 May 2016 into believing that she had permission to carry out the rectification work and that the only issue at the renewed proceedings was the reasonable cost of that work. This amounted to a denial of procedural fairness. The Appeal Panel could not conclude that a properly conducted application could not possibly have produced a different result, particularly because further evidence could bear on whether the respondent had engaged suitably licensed contractors and whether any failure to commence by 31 March 2016 was attributable to the respondent. The appeal was therefore allowed and the...

Jurisdiction
Australia
Judgment Date
28 July 2017
Procedural Posture
Internal Appeal in Home Building Proceedings / Appeal Panel Decision on Appeal From Consumer and Commercial Division Decision Dated 15 July 2016
Outcome
The appeal is allowed.
Legal Topics
['procedural Fairness' 'renewal of Proceedings' 'consent Work Order' 'internal Appeal' 'question of Law']
['administrative Law' 'home Building' 'consumer and Commercial'] ['procedural Fairness' 'renewal of Proceedings' 'consent Work Order' 'internal Appeal' 'question of Law']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Internal Appeal in Home Building Proceedings / Appeal Panel Decision on Appeal From Consumer and Commercial Division Decision Dated 15 July 2016

Legal Issues

  1. 1 ["Whether the homeowner was denied procedural fairness because she was inadvertently misled by the Tribunal's orders made on 2 May 2016 about the issues and evidence required at the subsequent hearing." 'Whether the denial of procedural fairness deprived the homeowner of the possibility of a successful outcome.' 'Whether the builder failed to comply with the consent work order requiring work to commence not later than 31 March 2016.']

Ratio Decidendi

The Appeal Panel held that the appellant was inadvertently misled by the Tribunal's orders of 2 May 2016 into believing that she had permission to carry out the rectification work and that the only issue at the renewed proceedings was the reasonable cost of that work. This amounted to a denial of procedural fairness. The Appeal Panel could not conclude that a properly conducted application could not possibly have produced a different result, particularly because further evidence could bear on whether the respondent had engaged suitably licensed contractors and whether any failure to commence by 31 March 2016 was attributable to the respondent. The appeal was therefore allowed and the...

Court Disposition

The appeal is allowed.

Orders

  • ['The appeal is allowed.' 'The case is to be reconsidered by the Tribunal with further evidence.' 'The case is to be listed before the Tribunal for directions as to the hearing of the case including the times for filing further evidence and setting a date for the reconsideration by the Tribunal.']