Rigby v Oxenford [2023] NSWCATAP 79

Rigby v Oxenford [2023] NSWCATAP 79

The Appeal Panel found that, although the appeal was out of time, an extension should be granted due to a short delay and lack of prejudice. However, the builder had not raised the material value issue at first instance, did not demonstrate procedural unfairness, and the findings regarding defective work and loss were supported by the evidence, particularly the unchallenged expert evidence of Mr Chresby. Therefore, leave to appeal was refused and the appeal was dismissed.

Parties
Appellant: Ryan Rigby; Respondent: Katie Oxenford; Respondent: Ryan Oxenford
Jurisdiction
Australia
Judgment Date
20 March 2023
Procedural Posture
Appeal / Decision on Internal Appeal
Outcome
Leave to appeal refused; appeal dismissed
Legal Topics
Appeal, Procedural Fairness, Extension of Time, Statutory Warranties, Weight of Evidence
Building and Construction Administrative Law Appeal Procedural Fairness Extension of Time Statutory Warranties Weight of Evidence

Case Brief

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Parties

Ryan Rigby

Appellant

Katie Oxenford

Respondent

Ryan Oxenford

Respondent

Procedural Posture

Appeal / Decision on Internal Appeal

Legal Issues

  1. 1 Whether time to lodge notice of appeal should be extended
  2. 2 Whether Tribunal constructively failed to exercise jurisdiction
  3. 3 Whether there was a failure to afford procedural fairness

Ratio Decidendi

The Appeal Panel found that, although the appeal was out of time, an extension should be granted due to a short delay and lack of prejudice. However, the builder had not raised the material value issue at first instance, did not demonstrate procedural unfairness, and the findings regarding defective work and loss were supported by the evidence, particularly the unchallenged expert evidence of Mr Chresby. Therefore, leave to appeal was refused and the appeal was dismissed.

Court Disposition

Leave to appeal refused; appeal dismissed

Orders

  • The time for lodgement of the notice of appeal is extended to 12 December 2022.
  • Leave to appeal is refused.