Rice v JR & SD Farmer t/a Urban Bespoke Homes [2020] NSWCATAP 208

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Rice v JR & SD Farmer t/a Urban Bespoke Homes [2020] NSWCATAP 208 Hearing dates: 27 April 2020 and 15 May 2020 Date of orders: 13 October 2020 Decision date: 13 October 2020 Jurisdiction: Appeal Panel Before: T Simon, Principal Member P H Molony, Senior Member Decision: (1) Leave is granted to the appellants to appeal the decision made in the Commercial and Consumer Division of the Tribunal on 13 December 2018 with respect to the applications bearing the file numbers HB19/09932 and HB 19/19180. (2) Appeal allowed. (3) The decision made by the Tribunal on 13 December 2018 is set aside. (4) The applications are remitted to the Commercial and Consumer Division for reconsideration in full before a differently constituted Tribunal with such further evidence as the Tribunal may allow. (5) If any party seeks to make an application for costs of the appeal: (a) that party is to so inform the other parties within 14 days of the date of these reasons; (b) the applicant for costs is to lodge with the Appeal Panel and served 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 an oral 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 rather than the application being determined on the papers. Catchwords: APPEAL– discretion regarding admission evidence – Tribunal decision based on a mistaken view of relevant facts – refusal to admit evidence did not facilitate the just, quick and cheap resolution of the real issues in the proceedings – Tribunal decision to refuse admission of evidence due to improper form - s 36 and 38(4) Civil and Administrative Tribunal Act 2013 – appeal allowed. APPEAL- Building and Construction – home building - requirement for variations to be in writing and signed – variation not in writing not enforceable in contract – recovery for unenforceable variation on a quantum meruit – cost of variation calculated in accordance with the contract constitutes cap on what may be recovered as fair and reasonable cost of work. ADMINISTRATIVE LAW – appeal on a question of law – bias – actual bias – apprehended bias – decision not affected by actual or apprehended bias. Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2013 Home Building Act 1989 Cases Cited: BHP Billiton Ltd v Dunning [2013] NSWCA 421 Collins v Urban [2014] NSWCATAP 17 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 Goncalves v Bora Developments Pty Ltd [2020] NSWCATAP 9 Hannaford v Commonwealth Bank of Australia [2014] NSWCA 297 House v R [1936] HCA 40; (1936) 55 CLR 499 Li v Minister for Immigration and Multicultural Affairs [2000] FCA 19 Mann v Paterson Constructions Pty Ltd [2019] HCA 32 Michael Wilson & Partners v Nicholls (2011) 244 CLR 427; [2011] HCA 48 Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 Murlan Consulting v Ku-ring-gai Municipal Council [2009] NSWCA 300 Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 Paraiso v CBS Pty Ltd [2020] NSWSC 190 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Re JRL; Ex parte CJL [1986] HCA 39; 161 CLR 342 Thompson v Chapman [2016] NSWCATAP 6 Watkins v Woolworths Limited [2017] NSWCATAP 125 Xu v Jinhong Design & Constructions Pty Ltd [2011] NSWCA 277 ZFJ v ZEY [2018] NSWCATAP 76 Texts Cited: JW Carter, Carter on Contract, (Lexis Advance) Category: Principal judgment Parties: Spencer Rice (First Appellant) Elisha Rice (Second Appellant) JR & SD Farmer t/a Urban Bespoke Homes (Respondent) Representation: Solicitors: Whitehead Cooper Williams (Appellants) Respondents (Self Represented) File Number(s): AP 19/57670 Publication restriction: None Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 13 December 2019 Before: S F Smith File Number(s): HB19/09932 and HB 19/19180