Diao v Rawson Homes Pty Ltd [2021] NSWCATAP 273

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Diao v Rawson Homes Pty Ltd [2021] NSWCATAP 273 Hearing dates: 3 May 2021 Date of orders: 13 September 2021 Decision date: 13 September 2021 Jurisdiction: Appeal Panel Before: K Rosser, Principal Member M Gracie, Senior Member Decision: 1. Appeal allowed. 2. The proceedings are remitted to a differently constituted Tribunal for hearing and determination of the appellant's application in accordance with the evidence previously adduced to the Tribunal and such further evidence as the Tribunal may allow, including the evidence provided on this appeal. 3. Each party pay their own costs of the appeal. 4. Order 3 above ceases to have effect if either party contends for a different costs order, in which case the following orders apply. 5. Any application for costs is to be provided to the Appeal Panel and the other party, supported by submissions, within 14 days of the date of publication of these orders. 6. Any submissions in response to the costs application are to be provided to the Appeal Panel and to the other party within 28 days of the date of publication of these orders. 7. Any submissions in reply are to be provided to the Appeal Panel and the other party within 35 days of the date of publication of these orders. 8. Costs submissions are not to exceed five pages in length and must address whether the party agrees to costs being determined without a hearing and on the basis of the written submissions provided. Catchwords: APPEAL — NCAT— appeal from decision of Consumer and Commercial Division of NCAT - calculating three year time limit for bringing application for defective home building works under the Home Building Act - breach of contract - no claim for breach of statutory warranties - Tribunal found time runs from date of occupation certificate - alternative claim by respondent that time runs from date of practical completion - error of law - inadequate reasons - fresh evidence - time runs from the date on which the supply of goods and services was last made. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Home Building Act 1989 (NSW) Cases Cited: Bellgrove v Eldridge (1954) 90 CLR 613 Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 Dyldam Developments Pty Ltd v The Owners – Strata Plan 85305 [2020] NSWCA 327 Federal Commission of Taxation v Trail Brothers Steel & Plastics Pty Ltd (2010) 186 FCR 410 New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 S & G Homes Pty Ltd t/as Pavilion Homes v Owen [2015] NSWCATAP 190 Category: Principal judgment Parties: J Diao (Appellant) Rawson Homes Pty Ltd (Respondent) Representation: Self Represented (Appellant) A Li, Solicitor (Respondent) File Number(s): 2021/00059421 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 15 February 2021 Before: Dr P Briggs, General Member File Number(s): HB 20/11544