Ashton v Stevenson; Stevenson v Ashton [2020] NSWCATAP 233

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Ashton v Stevenson; Stevenson v Ashton [2020] NSWCATAP 233 Hearing dates: 16 March 2020 Date of orders: 9 November 2020 Decision date: 09 November 2020 Jurisdiction: Appeal Panel Before: M Harrowell, Deputy President T Simon, Principal Member Decision: (1) In appeal AP 19/5551 (Stevenson Appeal), leave to appeal is granted in respect of the decision concerning the rear terrace drainage defect. (2) Unless otherwise agreed, the rectification costs for the rear terrace drainage defect will be assessed by the Appeal Panel following receipt of further submissions on quantum from the parties and final orders made in respect of this item. (3) Save as provided above, leave to appeal is refused and the appeal is dismissed. (4) In appeal AP 20/13241 (Ashton Appeal), leave to appeal is refused and the appeal is dismissed. (5) In respect of appeal AP 19/48919 (Ashton Costs Appeal), the time to file the Notice of Appeal is extended to 30 October 2020, the appeal is allowed and the costs order made 14 August 2018 is set aside. (6) In respect of the assessment of damages under order 2, the following directions are made: (a) On or before 27 November 2020, the parties are to advise the Appeal Panel of any agreement regarding damages, in which case an order will be made for the agreed amount; (b) On or before 27 November 2020 Mr Stevenson is to file and serve any submissions and other documents concerning the assessment of the reasonable costs of rectifying the rear terrace drainage defect; (c) On or before 11 December 2020, Ms Ashton is to file and serve any submissions and documents in reply; (d) On or before 18 December 2020 Mr Stevenson is to file and serve any submissions in response. (e) The submissions are to include submissions about whether an order should be made under s 50(2) of the Civil and Administrative Tribunal Act 2013 dispensing with a hearing. (7) In respect of costs of the proceedings at first instance and of the appeal, the following directions are made: (a) On or before 27 November 2020 Mr Stevenson is to file and serve any submissions and other documents in respect of any application for costs he wishes to make (Stevenson costs application); (b) On or before 11 December 2020, Ms Ashton is to file and serve any submissions and documents in reply to the Stevenson costs application and any submissions and documents in support of any application for costs she wishes to make (Ashton costs application); (c) On or before 18 December 2020 Mr Stevenson is to file and serve any submissions in response to either the Stevenson costs application or the Ashton costs application. (d) On or before 23 December 2020, Ms Ashton is to file and serve any submissions in response in relation to the Ashton costs application. (e) The submissions are to include submissions about whether an order should be made under s 50(2) of the Civil and Administrative Tribunal Act 2013 dispensing with a hearing. Catchwords: BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – major defect – major element – caused or likely to cause the inability to inhabit the building or part of the building or the destruction of the building or part of the building or a threat of collapse of the building or part of the building. – meaning of waterproofing – evidence relevant to determination of whether defect likely to cause prescribed consequences APPEALS – leave to appeal – substantial miscarriage of justice – new evidence following completion of work subsequent to determination of claim Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Home Building Act 1989 (NSW) Cases Cited: Adam Eftimoski v Metricon Homes Pty Ltd [2014] NSWCATCD 254 Leung v Alexakis [2018] NSWCATAP 11 Andy and Patrick Floor Covering Pty Ltd t/as Silver Trading Timber Floor v Li [2018] NSWCATAP 172 Ashton v Stevenson; Stevenson v Ashton [2019] NSWCATAP 67 Ashton v Stevenson; Stevenson v Ashton (No 2) [2019] NSWCATAP 238 Bailey v Owners Corporation of Strata Plan 62666 [2011] NSWCA 293 Collins v Urban [2014] NSWCATAP 17 Dasreef Pty Ltd v Hawchar [2001] HCA 21 Stevenson v Ashton [2018] NSWCATCD 25 Stevenson v Ashton [2019] NSWSC 1689 Texts Cited: Nil Category: Principal judgment Parties: AP 19/48919 & AP 20/13241: Jacqueline Ashton (Appellant) Phillip Stevenson (Respondent)