X-Build Construction Services Pty Ltd v O’Rourke [2020] NSWCATAP 181

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: X-Build Construction Services Pty Ltd v O'Rourke [2020] NSWCATAP 181 Hearing dates: 21 July 2020 Date of orders: 1 September 2020 Decision date: 01 September 2020 Jurisdiction: Appeal Panel Before: G Curtin SC, Senior Member J McAteer, Senior Member Decision: (1) Appeal upheld part. (2) Vary Order 1 of the Tribunal so that it reads: (3) "Order that the builder is, by three calendar months from the date of these orders, to attend at the property and, at his own expense, to rectify with due care and skill and in a proper and tradesman like manner using materials fit for purpose, Item 24 in relation to the staining along the veneer join in the joinery to the kitchen and identified in photograph 41 of the report of Mr O'Mara dated 21 December 2018, and Item 25, of the alleged defective building works in accordance with the scope of works of Mr O'Mara set out in the Second Scott Schedule which is Exhibit J2." (4) Liberty is granted to any party to restore to the Tribunal below (as originally constituted, or, if that is not possible, differently constituted) on seven days notice, such notice to include notice of the orders the re-listing party proposes to seek. (5) If any party desires to make an application for costs: (a) that party is to so inform the other party within 14 days of the date of these reasons; (b) the applicant for costs is to lodge with the Appeal Panel and serve on the respondent to the costs application any written submissions of no more than five pages on or before 14 days from the date of these reasons; (c) the respondent to any costs application is to lodge with the Appeal Panel and serve on the applicant for costs any written submissions of no more than five pages on or before 28 days from the date of these reasons; (d) any reply submissions limited to three pages are to be lodged with the Appeal Panel and served on the other party within 35 days of the date of these reasons; (e) the parties are to indicate in their submissions whether they consent to an order dispensing with a hearing of the costs application, and if they do not consent, submissions of no more than one page as to why an oral hearing should be conducted. Catchwords: APPEALS – constructive failure to exercise jurisdiction – absence of a necessary finding of fact – Appeal Panel in as good a position as the Tribunal to make that finding of fact – consequential variation of the Tribunal's orders EVIDENCE — interpretation of photographs — whether photographs may be used as substantive evidence or merely demonstrative evidence – restraint on use of photographs Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), Schedule 4 cl 12(1)(c) Cases Cited: Beaton v McDivitt (1985) 13 NSWLR 134 Blacktown City Council v Hocking [2008] NSWCA 144 Goode v Angland [2017] NSWCA 311; (2017) 96 NSWLR 503 Tran v Nominal Defendant [2011] NSWCCA 220 Texts Cited: Nil Category: Principal judgment Parties: X-Build Construction Services Pty Ltd (Appellant) Aaron O'Rourke (First Respondent) Sally O'Rourke (Second Respondent) Representation: Counsel: C Lambert (Appellant)