Cao v Lavish Construction and Developments Pty Ltd [2022] NSWCATAP 391

Cao v Lavish Construction and Developments Pty Ltd [2022] NSWCATAP 391

The Tribunal did not make an operative work order or decision determining proceedings; the appeal against the Liability Decision is incompetent. The interlocutory decision for cost submissions is within appealable jurisdiction; extension of time and leave to appeal are granted due to miscarriage of discretion as Tribunal had no power to order costs absent an operative decision. The Costs Decision was beyond Tribunal’s jurisdiction and is set aside.

Jurisdiction
Australia
Judgment Date
16 December 2022
Procedural Posture
Internal Appeal / Appeal Panel Decision
Outcome
Appeal allowed in part, otherwise dismissed as incompetent
Legal Topics
['appeals' 'jurisdiction' 'procedural Fairness' 'costs' 'extension of Time' 'leave to Appeal']
['civil' 'building and Construction' 'tribunal Procedure'] ['appeals' 'jurisdiction' 'procedural Fairness' 'costs' 'extension of Time' 'leave to Appeal']

Case Brief

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Procedural Posture

Internal Appeal / Appeal Panel Decision

Legal Issues

  1. 1 ['Whether the appeal against the Liability Decision is competent' 'Whether an extension of time to appeal should be granted' 'Whether leave to appeal should be granted in respect of interlocutory decisions' 'Whether the Tribunal had jurisdiction to make the Costs Decision' 'Whether exercise of discretion in interlocutory decision miscarried']

Ratio Decidendi

The Tribunal did not make an operative work order or decision determining proceedings; the appeal against the Liability Decision is incompetent. The interlocutory decision for cost submissions is within appealable jurisdiction; extension of time and leave to appeal are granted due to miscarriage of discretion as Tribunal had no power to order costs absent an operative decision. The Costs Decision was beyond Tribunal’s jurisdiction and is set aside.

Court Disposition

Appeal allowed in part, otherwise dismissed as incompetent

Orders

  • ['The time for lodgement of the notice of appeal so far as it relates to the interlocutory decision made by the Tribunal on 9 May 2022 is extended to 20 July 2022.' 'Leave to appeal against the interlocutory decision made by the Tribunal on 9 May 2022 is granted.' 'The appeal against the interlocutory decision made...