Augustus v Mohammed [2016] NSWCATAP 108

Augustus v Mohammed [2016] NSWCATAP 108

The appellants were afforded procedural fairness; the Tribunal's case management and conduct were appropriate and did not constitute bias or create a miscarriage of justice. Section 48MA of the Home Building Act 1989 did not apply to the proceedings, as they were commenced before its operation. No sufficient new evidence was adduced to justify leave to appeal. The expert report was admissible and substantially compliant. The appeal and application for leave to appeal are dismissed; original orders are affirmed; issue regarding the builder is remitted for possible further orders.

Jurisdiction
Australia
Judgment Date
18 May 2016
Procedural Posture
Internal Appeal / Decision on Appeal and Application for Leave to Appeal
Outcome
Appeal and Application for Leave to Appeal dismissed. Orders under appeal affirmed. Proceedings remitted in respect of first respondent builder. Stay application dismissed. Costs application to be determined on submissions.
Legal Topics
['procedural Fairness' 'extension of Time' 'leave to Appeal' 'expert Evidence' 'costs' 'rectification of Defective Work' "developers' Liability"]
['civil Procedure' 'home Building Law'] ['procedural Fairness' 'extension of Time' 'leave to Appeal' 'expert Evidence' 'costs' 'rectification of Defective Work' "developers' Liability"]

Case Brief

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Procedural Posture

Internal Appeal / Decision on Appeal and Application for Leave to Appeal

Legal Issues

  1. 1 ['Whether there was a lack of procedural fairness at first instance' 'Whether the Tribunal failed to consider s48MA of the Home Building Act 1989' 'Whether leave to appeal should be granted for new evidence' 'Weight of the evidence and the expert report' 'Developer status under Home Building Act']

Ratio Decidendi

The appellants were afforded procedural fairness; the Tribunal's case management and conduct were appropriate and did not constitute bias or create a miscarriage of justice. Section 48MA of the Home Building Act 1989 did not apply to the proceedings, as they were commenced before its operation. No sufficient new evidence was adduced to justify leave to appeal. The expert report was admissible and substantially compliant. The appeal and application for leave to appeal are dismissed; original orders are affirmed; issue regarding the builder is remitted for possible further orders.

Court Disposition

Appeal and Application for Leave to Appeal dismissed. Orders under appeal affirmed. Proceedings remitted in respect of first respondent builder. Stay application dismissed. Costs application to be determined on submissions.

Orders

  • ['The time for instituting this appeal is extended to 6 November 2015.' 'Subject to order 4, the Appeal and the Application for Leave to Appeal are dismissed.' 'The order appealed from is affirmed.' 'The subject proceedings are remitted to the Consumer and Commercial Division of this Tribunal for consideration (on...