Dellagiacoma v Dragh [2017] NSWCATAP 147

Dellagiacoma v Dragh [2017] NSWCATAP 147

The Appeal Panel held that the Tribunal erred in dismissing the renewal application on the basis that the December decision had already determined the appellant's claim. The December decision dealt with an application to amend the original proceedings, not an application to renew under cl 8 of Sch 4, and its refusal of leave to amend did not necessarily determine whether the 4 May 2015 work order had been complied with, did not set aside or extinguish that work order, and did not create any res judicata, issue estoppel or merger preventing a later renewal application. Time to appeal was extended and leave to appeal was granted, but the Appeal Panel declined to decide whether to extend...

Jurisdiction
Australia
Judgment Date
13 July 2017
Procedural Posture
Internal Appeal From NSW Civil and Administrative Tribunal, Consumer and Commercial Division, Concerning a Renewal Application Under Cl 8 of Sch 4 of the Civil and Administrative Tribunal Act 2013 (nsw) in a Home Building Dispute / Appeal Panel Decision on Leave to Appeal, Extension of Time, Appeal, and Remittal
Outcome
Leave to appeal granted; appeal allowed; decision of 22 February 2017 set aside; proceedings remitted to the Tribunal.
Legal Topics
['renewal of Proceedings' 'home Building Work Orders' 'defective and Incomplete Building Work' 'res Judicata' 'issue Estoppel' 'merger in Judgment' 'extension of Time' 'remittal' 'costs']
['administrative Law' 'civil Procedure' 'home Building'] ['renewal of Proceedings' 'home Building Work Orders' 'defective and Incomplete Building Work' 'res Judicata' 'issue Estoppel' 'merger in Judgment' 'extension of Time' 'remittal' 'costs']

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

Internal Appeal From NSW Civil and Administrative Tribunal, Consumer and Commercial Division, Concerning a Renewal Application Under Cl 8 of Sch 4 of the Civil and Administrative Tribunal Act 2013 (nsw) in a Home Building Dispute / Appeal Panel Decision on Leave to Appeal, Extension of Time, Appeal, and Remittal

Legal Issues

  1. 1 ['Whether time to appeal the renewal decision should be extended.' "Whether the Tribunal's 1 December 2015 decision dismissing an application to amend prevented the appellant from renewing proceedings for alleged non-compliance with the 4 May 2015 consent work order." 'Whether res judicata, issue estoppel or merger barred the renewal application.' 'Whether the Appeal Panel should extend time to bring the renewal application or grant leave to renew the proceedings.']

Ratio Decidendi

The Appeal Panel held that the Tribunal erred in dismissing the renewal application on the basis that the December decision had already determined the appellant's claim. The December decision dealt with an application to amend the original proceedings, not an application to renew under cl 8 of Sch 4, and its refusal of leave to amend did not necessarily determine whether the 4 May 2015 work order had been complied with, did not set aside or extinguish that work order, and did not create any res judicata, issue estoppel or merger preventing a later renewal application. Time to appeal was extended and leave to appeal was granted, but the Appeal Panel declined to decide whether to extend...

Court Disposition

Leave to appeal granted; appeal allowed; decision of 22 February 2017 set aside; proceedings remitted to the Tribunal.

Orders

  • ['Leave is granted to appeal the decision made 22 February 2017 and that decision is set aside.' 'The proceedings are remitted to the Tribunal to hear and determine the application in accordance with these reasons and according to law.' "Subject to any submissions made by the parties in accordance with order 4, the...