Day v Quince’s Quality Building Services Pty Ltd [2021] NSWCATAP 296

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Day v Quince's Quality Building Services Pty Ltd [2021] NSWCATAP 296 Hearing dates: 20 September 2021 Date of orders: 30 September 2021 Decision date: 30 September 2021 Jurisdiction: Appeal Panel Before: I R Coleman SC ADCJ, Principal Member R C Titterton OAM, Senior Member Decision: (1) The appeal is allowed. (2) The orders of the Tribunal in HB 20/43841 of 31 May 2021 are set aside and the matter will be remitted to the Tribunal. (3) The order of the Tribunal in HB 20/43841 of 19 August 2021 is set aside. (4) Within seven days of receipt of these reasons the appellants are to file and serve submission in relation to: (a) the extent of the remitter of the proceedings; and (b) the costs of the appeal and the costs at first instance. (5) Within 14 days of receipt of these reasons the respondent is to file and serve any submissions in response; (6) Within 21 days of receipt of these reasons the appellants are to file and serve any submissions in reply; (7) The Appeal Panel proposes to decide the extent of the remitter of the matter to the Tribunal and any application for costs "on the papers". If either party opposes this course, they should address that issue in their submissions. Catchwords: BUILDING AND CONSTRUCTION – construction and interpretation of home building contract – cl 14 of the BC4 Residential Building Contract – whether Tribunal erred in interpretation and application of the clause Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) – ss 38, 80 Cases Cited: Anataios Compania Naviera SA v Salen Rederoerna AB [1985] AC 191 L Schuler AG v Wickman Machine Tool Sales Ltd [1974] AC 235 Mann v Paterson Constructions Pty Ltd [2019] HCA 32 Nadarasa v Vansan Construction Pty Limited [2018] NSWCATAP 270 Paraiso v CBS Build Pty Ltd [2020] NSWSC 190 Resource Pacific Pty Ltd v Wilkinson (2013) NSWCA 33 TCN Channel 9 Pty Ltd v Hayden Enterprises Pty Ltd (1989) 16 NSWLR 130 Category: Principal judgment Parties: Aaron Day and Claire Day (Appellants) Quinces Quality Building Services Pty Ltd (Respondent) Representation: Counsel: D Hand (Appellants) A Joseph (Respondent)