John McDonald Building Services Pty Ltd v Gusa [2022] NSWCATAP 60

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: John McDonald Building Services Pty Ltd v Gusa [2022] NSWCATAP 60 Hearing dates: 22 October 2021 Date of orders: 7 March 2022 Decision date: 07 March 2022 Jurisdiction: Appeal Panel Before: Coleman SC ADCJ, Principal Member J Currie, Senior Member Decision: 1. The appeal is allowed. 2. The orders of the Tribunal of 11 August 2021 are set aside. 3. The Appellant forthwith pay to the Respondents the sum of $58,382.24 for the rectification of defective works. 4. The balance of the proceedings be remitted for rehearing according to law. 5. Costs are reserved. 6. That within 7 days, a party making an application for costs file and serve written submissions not exceeding five pages in length in support of such application. (7) That within 7 days of receipt of submissions pursuant to order 6, a party resisting an application for costs file and serve written submissions not exceeding 5 pages in length in support of such opposition. Catchwords: APPEALS —Procedural fairness — Failure to have regard to a relevant consideration APPEALS — Right of appeal — Scope of right JURISDICTION- Excess or lack of jurisdiction below — whether monetary jurisdictional limits of Tribunal pursuant to Fair Trading Act 1987 applicable to claims arising from building disputes- statutory interpretation EVIDENCE- where hearsay opinion evidence relied- whether procedural fairness requirements of admissibility satisfied BUILDING AND CONSTRUCTION — Contract — Termination — loss of right to terminate Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Competition and Consumer Act 2010 (Cth), Schedule 2 – Australian Consumer Law Fair Trading Act 1987 (NSW) Home Building Act 1989 (NSW) Cases Cited: Chuang v New Legend Global Developments Pty Limited [2017] NSWCATCD 101 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54 Grygiel v Baine & Ors [2005] NSWCA 218; Herbert v American Express Australia Limited & Ors [2016] NSWCATAP 47 House v The King (1936) 55 CLR 499; [1936] HCA 40 Jenkinson v Chaw [2015] NSWCATAP 127 Lombard North Central Plc v Butterworth [1987] QB 527 Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357; [2010] HCA 31 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 MZAPC v Minister for Immigration and Border Protection [2021] HCA 17 O'Neill v Country Motor Company [2018] NSWCATCD 76 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 Safi v Heartland Motors Pty Limited t/as Heartland Chrysler [2016] NSWCATAP 80 Singh v Verdi Group Pty Limited [2017] NSWCATCD 94 Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54 Vince Taskovski & Anor v Otomobile Shoppe Pty Limited [2015] NSWCATCD 24 World Series Cricket Pty Ltd v Parish (1977) 16 ALR 181 Zey v Bunnings Group Limited [2016] NSWCATAP 72 Texts Cited: J Beazley AO, P Vout & S Fitzgerald, Appeals and Appellate Courts in Australia and New Zealand, (1st ed, 2013, Lexis Nexis Australia) D Pearce & R Geddes, Statutory Interpretation in Australia, (9th ed, 2019, Lexis Nexis Australia) Category: Principal judgment Parties: John McDonald Building Services Pty Ltd (Appellant) Milorad Gusa (First Respondent) Natasha Gusa (Second Respondent) Representation: Counsel: M Sheldon (Appellant) P Lonergan (Respondent)