Kesuma v Gittany [2021] NSWCATAP 46

Kesuma v Gittany [2021] NSWCATAP 46

The appellant had conceded before the Tribunal that $21,500 was owing and did not show that he advanced a case below that the concession was subject to contractual provisions delaying payment until completion or rectification. He could not conduct an alternative case on appeal, so no error of law was established. The asserted licensing evidence was not shown to be unavailable at the hearing, and no substantial miscarriage of justice was established. Non-compliance with work orders could be raised in a renewal application, not on appeal. Leave to appeal was refused and the appeal was dismissed.

Jurisdiction
Australia
Judgment Date
02 March 2021
Procedural Posture
Internal Appeal From a Consumer and Commercial Division Home Building Decision / Appeal Panel Decision on Appeal and Leave to Appeal
Outcome
Leave to appeal refused; appeal dismissed; costs submissions directions made.
Legal Topics
['work Order' 'time to Pay Money' 'error of Law' 'leave to Appeal' 'substantial Miscarriage of Justice' 'costs']
['home Building' 'administrative Law' 'civil Procedure'] ['work Order' 'time to Pay Money' 'error of Law' 'leave to Appeal' 'substantial Miscarriage of Justice' 'costs']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Internal Appeal From a Consumer and Commercial Division Home Building Decision / Appeal Panel Decision on Appeal and Leave to Appeal

Legal Issues

  1. 1 ['Whether the Tribunal made an error of law by ordering immediate payment of $21,500 to the builder despite findings of incomplete and defective works and the contract remaining on foot.' "Whether leave to appeal should be granted on the basis of alleged new evidence concerning the builder's licensing status." 'Whether issues of alleged non-compliance with work orders should be dealt with on appeal or by renewal application.']

Ratio Decidendi

The appellant had conceded before the Tribunal that $21,500 was owing and did not show that he advanced a case below that the concession was subject to contractual provisions delaying payment until completion or rectification. He could not conduct an alternative case on appeal, so no error of law was established. The asserted licensing evidence was not shown to be unavailable at the hearing, and no substantial miscarriage of justice was established. Non-compliance with work orders could be raised in a renewal application, not on appeal. Leave to appeal was refused and the appeal was dismissed.

Court Disposition

Leave to appeal refused; appeal dismissed; costs submissions directions made.

Orders

  • ['Leave to appeal is refused.' 'The appeal is dismissed.' 'The respondent is to provide to the Appeal Panel and the appellant, either in person or by post, any submissions and documents in relation to the application for costs by 8 March 2021.' 'The appellant is to provide to the Appeal Panel and the respondent,...