Vujica v TNM Roofing Pty Ltd [2022] NSWCATAP 305

Vujica v TNM Roofing Pty Ltd [2022] NSWCATAP 305

The builder could not enforce the contract or obtain a money award as the contract did not meet s 7 writing and information requirements of the Home Building Act 1989 (NSW), thus s 10 applied, making the contract unenforceable at the suit of the builder; further, the rejection of the homeowners' expert report was wrongly based on technicalities contrary to procedural rules in NCAT.

Parties
First Appellant: Stipo Vujica; Second Appellant: Blazenka Vujica; Respondent: TNM Roofing Pty Ltd
Jurisdiction
Australia
Judgment Date
20 September 2022
Procedural Posture
Civil Appeal / Appeal Decision
Outcome
Appeal allowed in part, orders 2 and 3 set aside, proceedings remitted to Tribunal, repayment ordered
Legal Topics
Enforceability of Contract Under Home Building Act 1989 (nsw), Admissibility of Expert Evidence in NCAT, Procedural Fairness
Building and Construction Consumer Law Enforceability of Contract Under Home Building Act 1989 (nsw) Admissibility of Expert Evidence in NCAT Procedural Fairness

Case Brief

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Parties

Stipo Vujica

First Appellant

Blazenka Vujica

Second Appellant

TNM Roofing Pty Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal Decision

Legal Issues

  1. 1 Whether non-compliance with writing requirements under s 7 of the Home Building Act 1989 (NSW) renders contract unenforceable by the builder under s 10;
  2. 2 Whether the Tribunal erred in rejecting the Scott expert report for failure to sign and date it where evidentiary rules do not apply;
  3. 3 Whether the original Tribunal erred in making a money order in favour of the builder.

Ratio Decidendi

The builder could not enforce the contract or obtain a money award as the contract did not meet s 7 writing and information requirements of the Home Building Act 1989 (NSW), thus s 10 applied, making the contract unenforceable at the suit of the builder; further, the rejection of the homeowners' expert report was wrongly based on technicalities contrary to procedural rules in NCAT.

Court Disposition

Appeal allowed in part, orders 2 and 3 set aside, proceedings remitted to Tribunal, repayment ordered

Orders

  • Orders 2 and 3 made on 19 May 2022 in applications HB 21/52061 and HB 21/49598 are set aside.
  • The proceedings are remitted to the Consumer and Commercial Division for redetermination in accordance with these reasons and according to law by a differently constituted Tribunal.