Mick Fabar Constructions Pty Ltd v Nicholls; Nicholls v Mick Fabar Constructions Pty Ltd [2021] NSWCATAP 290

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Mick Fabar Constructions Pty Ltd v Nicholls; Nicholls v Mick Fabar Constructions Pty Ltd [2021] NSWCATAP 290 Hearing dates: 14 December 2020 Date of orders: 27 September 2021 Decision date: 27 September 2021 Jurisdiction: Appeal Panel Before: T Simon, Principal Member D Fairlie, Senior Member Decision: In relation to both appeals AP 20/24293 and AP 20/30093: 1. Time to appeal is extended 2. Leave to appeal is refused. 3. The appeals are dismissed. 4. In the event that a party wishes to bring a costs application, the costs application must be lodged in the Tribunal and served on the costs respondent within 14 days of the date of the orders in these proceedings either attaching or referring to the documents relied upon in support of the application. 5. The costs respondent will have 14 days after the date she or it receives the application to lodge in the Tribunal and serve on the costs applicant her or its submissions, if any, in response to the cost applicant's costs application, such submissions either attaching or referring to the documents relied upon. 6. The cost applicant will have 14 days after the date she or it receives the cost respondent's submissions to lodge in the Tribunal and serve on the costs respondent her or its submissions, if any, in reply, such submissions either attaching or referring to the documents relied upon. 7. The parties must state in their submissions whether or not they consent to the costs application being determined on the basis of the parties written submissions and attached documents, if any, without the need for a hearing. 8. Subject to the parties' submissions, the Tribunal will determine any costs application on the basis of the papers lodged in the Tribunal. Catchwords: HOME BUILDING - jurisdiction of Tribunal – appeal on a question of law – breach of contract – breach of statutory warranty – method of rectification – assessment of cost of rectification – indemnity costs. Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Home Building Act 1989 Cases Cited: Collins v Urban [2014] NSWCATAP 17 Dean v Stockland Property Management Pty Limited & Anor [2010] NSWCA 66 Hyder Consulting (Australia) P/L v Wilh Wilhelmsen Agency P/L & Anor [2001] NSWCA 313 Jackson v NSW Land & Housing Corporation [2014] NSWCATAP 22 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Re Minister for Immigration and Ethnic Affairs: Ex Parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6 Scarano v Palm Pools and Spas Pty Ltd [2019] NSWCATAP 79 Category: Principal judgment Parties: Mick Fabar Constructions Pty Ltd (Builder) Debbie Louise Nicholls (Homeowner) Representation: Counsel: T Davie for the Homeowner P Horobin for the Builder