Jamie Beyer t/as Leisure Pools & Spas Newcastle v Palazzi [2020] NSWCATAP 109

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Jamie Beyer t/as Leisure Pools & Spas Newcastle v Palazzi [2020] NSWCATAP 109 Hearing dates: 17 February 2020 Date of orders: 11 June 2020 Decision date: 11 June 2020 Jurisdiction: Appeal Panel Before: P Durack SC, Senior Member D Robertson, Senior Member Decision: (1) Leave to appeal is refused. (2) The appeal is dismissed. (3) The stay of order 2 made on 23 October 2019 in proceedings HB 18/39023, granted by consent on 29 November 2019, is lifted. (4) Subject to orders (5) to (7) below, the appellant is to pay the respondents' costs of the appeal as agreed or assessed. (5) If either party seeks a different order in respect of the costs of the appeal they must file and serve written submissions identifying the order sought within 21 days of the publication of this decision. (6) If submissions are filed in accordance with order (5) the other party must file and serve submissions in reply within 21 days thereafter (7) Any submissions filed by the parties pursuant to orders (5) and (6) above should address the question whether the Appeal Panel may determine the issues raised on the papers and dispense with a hearing in relation to those issues. Catchwords: APPEAL – Procedural fairness – Appellant claimed had not received critical expert report prior to hearing – no evidence filed on appeal to support assertion – facts said to constitute denial of procedural fairness not established

BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – Major defect – a small crack in a swimming pool shell not extending below the water-line did not amount to "destruction" of the swimming pool – evidence that the pool shell was not adequately supported and that cracking of the shell had occurred was sufficient to establish that the pool was likely to become unusable Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Home Building Act 1989 (NSW) Cases Cited: Armee v Brealey [2017] NSWCATAP 141 Ashton v Stevenson [2019] NSWSC 1689 Collins v Urban [2014] NSWCATAP 17 Hanson v Metricon Homes Pty Ltd [2019] NSWCATAP 133 Jones t/as Oz Style Homes v Panchal [2018] NSWCATAP 238 Kioa v West (1995) 159 CLR 550 Prendergast v Western Murray Irrigation [2014] NSWCATAP 69 Stevenson v Ashton [2019] NSWCATAP 67 Waters v Waghorn [2016] NSWCATAP 247 Texts Cited: None cited Category: Principal judgment Parties: Jamie Beyer t/as Leisure Pools & Spas Newcastle (Appellant) William Palazzi (First Respondent) Deborah Palazzi (Second Respondent) Representation: Arnold Lawyers (Appellant) Goldsmiths Lawyers (Respondents) File Number(s): AP 19/52004 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 23 October 2019 Before: G Sarginson, Senior Member File Number(s): HB 18/39023