Bryson v The FPC (NSW) Pty Ltd [2021] NSWCATAP 415

Bryson v The FPC (NSW) Pty Ltd [2021] NSWCATAP 415

The Appeal Panel rejected the Homeowners' challenges to the defect, betterment and Termimesh findings because no error of law or basis for leave under cl 12 was established. However, the Tribunal's reasons for allowing the Builder's variation claims were inadequate because it did not identify the factual basis for finding that the Liebe v Molloy requirements were satisfied. The variation issue therefore had to be remitted. The Homeowners' defect award was increased by $271.20 because the Builder conceded that additional amount for item 6.

Jurisdiction
Australia
Judgment Date
22 December 2021
Procedural Posture
Internal Appeal in Home Building Proceedings / Appeal Panel Decision on Appeal From the Consumer and Commercial Division
Outcome
Appeal dismissed except in relation to the orders concerning variations and the conceded increase for item 6; variation claim remitted for rehearing.
Legal Topics
['building Defects' 'statutory Warranties' 'assessment of Damages' 'betterment' 'quantum Meruit Variations' 'adequacy of Reasons' 'leave to Appeal' 'remittal']
['home Building' 'consumer and Commercial' 'contract' 'damages' 'civil Procedure'] ['building Defects' 'statutory Warranties' 'assessment of Damages' 'betterment' 'quantum Meruit Variations' 'adequacy of Reasons' 'leave to Appeal' 'remittal']

Case Brief

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Procedural Posture

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

Legal Issues

  1. 1 ['Whether leave to appeal should be granted on grounds that the decision was against the weight of evidence.' 'Whether the Tribunal gave inadequate reasons for accepting or rejecting expert evidence about alleged building defects.' 'Whether the Tribunal erred in assessing damages for pool surface damage by allowing for betterment.' "Whether the Tribunal gave adequate reasons for allowing the Builder's quantum meruit claim for variations." 'Whether the Termimesh claim and other defect compensation should be disturbed on appeal.']

Ratio Decidendi

The Appeal Panel rejected the Homeowners' challenges to the defect, betterment and Termimesh findings because no error of law or basis for leave under cl 12 was established. However, the Tribunal's reasons for allowing the Builder's variation claims were inadequate because it did not identify the factual basis for finding that the Liebe v Molloy requirements were satisfied. The variation issue therefore had to be remitted. The Homeowners' defect award was increased by $271.20 because the Builder conceded that additional amount for item 6.

Court Disposition

Appeal dismissed except in relation to the orders concerning variations and the conceded increase for item 6; variation claim remitted for rehearing.

Orders

  • ['The appeal is dismissed except to the extent of the orders that follow.' 'Orders 1 to 4 (inclusive in proceedings HB 20/13402 incorrectly stated as 20/00638) are affirmed except that the amount in order 1 is increased to $15,531.72.' 'Orders 1 and 2 made in proceedings HB 20/00638 are set aside.' 'Proceedings HB...