Bryson v The FPC (NSW) Pty Ltd [2021] NSWCATAP 415

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Bryson v The FPC (NSW) Pty Ltd [2021] NSWCATAP 415 Hearing dates: 26 July 2021 Date of orders: 22 December 2021 Decision date: 22 December 2021 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President J Currie, Senior Member Decision: (1) The appeal is dismissed except to the extent of the orders that follow. (2) Orders 1 to 4 (inclusive in proceedings HB20/13402 incorrectly stated as 20/00638) are affirmed except that the amount in order 1 is increased to $15,531.72. (3) Orders 1 and 2 made in proceedings HB 20/00638 are set aside. (4) Proceedings HB 20/00638 are remitted to the Consumer & Commercial Division for a rehearing based upon the evidence filed and served in those proceedings and without any new evidence being relied upon (unless both sides so consent) for the sole purpose of considering the amount of the claim for variations brought by the Builder but otherwise based upon the figures in [99] of the decision under appeal, (namely contract sum, adjusted contract sum, agreed credits, disputed credits, amount payable and less amount paid) which are not to be the subject of further dispute between the parties. (5) Either party may file and serve submissions with respect to costs of the appeal, provided that such submissions are filed and served within 14 days. (6) A party receiving submissions claiming costs has a further period of 14 days to file and serve submissions in reply. (7) The submissions with respect to costs of the appeal should include submissions as to whether the Appeal Panel may determine costs of the appeal on the papers and dispense with a further hearing. Catchwords: APPEAL- whether leave to appeal should be granted-inadequate reasons-assessment of damages-whether allowance to be made for betterment-remittal of claim for variations. Legislation Cited: Civil & Administrative Tribunal Act 2013 NSW Home Building Act 1989 NSW Cases Cited: Bellgrove v Eldridge[1954]HCA36 Collins v Urban[2014NSWCATAP17 Haines v Bendall [1991] HCA 15 House v R (1936) HCA 40 Hyder Consulting( Australia) P/L v Wilh Wilhelmsen Agency P/L and Anor [2001]NSWCA313 Liebe v Molloy [1906] HCA 67; 4 CLR 347 Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272 Texts Cited: Nil Category: Principal judgment Parties: Todd Bryson and Sarah Bryson (Appellants) The FPC (NSW) Pty Ltd (Respondent) Representation: L Stojanovski, Keystone Lawyers (Appellants) -br-S Green, a Director (Respondent) File Number(s): AP 21/132814 Publication restriction: Nil Decision under appeal Court or tribunal: New South Wales Civil & Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 12 April 2021 Before: G Ellis SC (Senior Member)