Maygood Australia Pty Ltd v The Owners – Strata Plan No 85338 [2020] NSWCATAP 237

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Maygood Australia Pty Ltd v The Owners – Strata Plan No 85338 [2020] NSWCATAP 237 Hearing dates: 14 April 2020 Date of orders: 16 November 2020 Decision date: 16 November 2020 Jurisdiction: Appeal Panel Before: G Blake AM SC, Senior Member D Robertson, Senior Member Decision: (1) Appeal allowed in part. (2) Vary Order 1 of the orders made on 16 December 2019 to read: "In application HB17/51531 the respondent is ordered to pay the applicant $66,581.51 within 28 days of the date of publication of the decision in AP20/01565". (3) Leave to appeal is refused. (4) The appeal is otherwise dismissed. (5) If there is to be any application for costs by either party then written submissions in support of such application are to be lodged with the Tribunal and served on the other side within 21 days, including submissions as to whether a hearing about costs can be dispensed with and any costs issues determined on the papers. Written submissions in response to any submissions from the other party are to be lodged with the Tribunal and served within 14 days thereafter. Catchwords: BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – Building dispute – Tribunal powers – Whether the Tribunal had jurisdiction to determine an application which had been accepted despite the absence of an investigation by Fair Trading NSW or a direction by the President PRACTICE AND PROCEDURE – Whether it was an error of law for the Tribunal to refuse a party leave to amend its Points of Defence at the final hearing Legislation Cited: Building & Construction Industry Security of Payment Act 1999 (NSW) Civil and Administrative Tribunal Act 2013 (NSW), ss 28, 29, 39, 40, 59, 80, Sch 4, cl 12 Home Building Act 1989 (NSW), ss 18B, 18C, 48C, 48I, 48J, 48K Retail Leases Act 1994 (NSW), s 68 Strata Schemes Development Act 2015 (NSW), ss 4, 6 Strata Schemes (Freehold Development) Act 1973 (NSW), s 5 (repealed) Cases Cited: Aon Risk Services Australia Ltd v ANU [2009] HCA 27; (2009) 239 CLR 175 Bellingen Shire Council v Colavon Pty Ltd [2012] NSWCA 34; (2012) 188 LGERA 169 Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190; (2010) 78 NSWLR 393 Collins v Urban [2014] NSWCATAP 17 David Grant & Co Pty Ltd v Westpac Banking Corporation [1995] HCA 43; (1995) 184 CLR 265 House v R [1936] HCA 40; (1936) 55 CLR 499 S & G Homes Pty Ltd t/as Pavilion Homes v Owen [2015] NSWCATAP 190 Siewa Pty Ltd v The Owners - Strata Plan No.35042 [2006] NSWSC 1157; (2006) 12 BPR 23,673 The Owners - Strata Plan No 35042 v Siewa Australia Pty Ltd [2007] NSWCA 272; |(2007) 13 BPR 24,789 The Owners - Strata Plan No.60182 v Bornzin [2019] NSWCATCD 30 Texts Cited: NCAT Procedural Direction 5 Acceptance of Home Building Claims Category: Principal judgment Parties: Maygood Australia Pty Ltd (Appellant) The Owners – Strata Plan No 85338 (Respondent) Representation: Counsel: P Tomasetti SC with J Mack (Appellant) D Byrne (Respondent)