Jandson Pty Ltd v James [2021] NSWCATAP 274

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Jandson Pty Ltd v James [2021] NSWCATAP 274 Hearing dates: 23 November 2020 Date of orders: 15 September 2021 Decision date: 15 September 2021 Jurisdiction: Appeal Panel Before: K Rosser, Principal Member D Robertson, Senior Member Decision: 1. To the extent necessary leave to appeal is granted. 2. The appeal is allowed. 3. Orders made in proceedings HB 19/04425 are set aside. 4. Proceedings HB 19/04425 are dismissed. 5. Brett Anthony James and Liza Michelle James are to pay Jandson Pty Ltd's costs of the Tribunal proceedings and the appeal, on the ordinary basis, as agreed or assessed. 6. If either party seeks a different costs order, order 5 ceases to have effect and the following orders apply: (a) Any application for a different costs order is to be filed and served, supported by evidence and submissions not exceeding five pages in length, within 14 days of the date of publication of these orders. (b) Any evidence and submissions in response to the application for a different costs order not exceeding five pages in length are to be filed and served within 28 days of the date of publication of these orders. (c) Any evidence and submissions in reply not exceeding three pages in length are to be filed and served within 35 days of the date of publication of these orders. (d) Subject to the parties' submissions in respect of this issue, the Tribunal proposes to determine any application for a different costs order on the basis of the evidence and submissions provided. Catchwords: BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – Statutory warranties - Application made outside statutory warranty period for original contract – Whether new contract entered into or original contract varied – Offer and acceptance – Consideration – Forbearance to sue – Completion date Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Environmental Planning and Assessment Act 1979 (NSW) Home Building Act 1989 (NSW) Home Building Amendment Act 2011 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Butler v Fairclough [1917] HCA 9; 23 CLR 78; 23 ALR 62 Chapman v. Taylor & Ors; Vero Insurance Ltd. v. Taylor & Ors. [2004] NSWCA 456 Collins v Urban [2014] NSWCATAP 17 Garofali v Moshkovich [2021] NSWCATAP 242 Haider v JP Morgan Holdings Aust Ltd t/as JP Morgan Operations Australia Ltd [2007] NSWCA 158 Haller v Ayre [2005] QCA 224 Hendriks v McGeoch [2008] NSWCA 53; (2008) Aust Torts Reports ¶81-942 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 at 418 Kriketos v Livschitz [2009] NSWCA 96 Latoudis v Casey [1990] 170 CLR 534 Magann v The Trustees of the Roman Catholic Church for the Diocese of Parramatta [2020] NSWCA 167 Miles v NZ Alford Estate Co (1886) 32 ChD 266 Ormwave v Smith [2007] NSWCA 210 Oshlack v Richmond River Council (1998) 193 CLR 72 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 R v Clarke [1927] HCA 47, (1927) 40 CLR 227 S & G Homes Pty Ltd t/as Pavilion Homes v Owen [2015] NSWCATAP 190 Suncorp Metway Insurance v Owners Corporation SP 64487 [2009] NSWCA 223 The Australian Gas Light Company v Valuer-General (1940) 40 SR (NSW) 126 Toplace Pty Ltd v The Council of the City of Sydney [2020] NSWLEC 121 Wilson Pastoral International Pty Ltd v George Street Steel Pty Ltd [2020] SACFC 54 Texts Cited: N/A Category: Principal judgment Parties: Jandson Pty Ltd – Appellant Brett Anthony James and Liza Michelle James – Respondents Representation: Counsel: M Klooster – Appellant P Bambagiotti - Respondent