Manca v Tullipan Homes Pty Ltd [2022] NSWCATAP 296

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Manca v Tullipan Homes Pty Ltd [2022] NSWCATAP 296 Hearing dates: 30 May 2022 Date of orders: 9 September 2022 Decision date: 09 September 2022 Jurisdiction: Appeal Panel Before: G Blake AM SC, Senior Member G Furness SC, Senior Member Decision: (1) The appeal is allowed in part. (2) Order 1 made on 21 October 2021 is varied to add the words ", and items 85, 138, 139 and 159 in the T1 Joint Schedule" after the number "143". (3) The items the subject of the appeal other than items 8.01, 8.08, 8.09, 8.10, 8.11 and 8.13 claimed in the Building Inspection Report of Barry Morris dated 21 September 2018 are remitted to the Tribunal as originally constituted for reconsideration without any further evidence. (4) A hearing to determine the costs of the appeal is dispensed with. (5) If the parties are in agreement as to the costs of the appeal, then they shall provide proposed consent orders to the Appeal Panel within 14 days of the date of the orders in these reasons for decision. (6) If the parties are not in agreement as to the costs of the appeal, then: (a) the appellant is to file and serve a costs application, submissions which shall be limited to five pages, and any evidence in support by way of affidavit, within 14 days of the date of the orders in these reasons for decision; (b) the respondent is to file and serve any submissions which shall be limited to five pages, and any evidence in opposition by way of affidavit, within 28 days of the date of the orders in these reasons for decision; (c) the appellant is to file and serve any submissions in reply which shall be limited to three pages within 35 days of the date of the orders in these reasons for decision. Catchwords: APPEALS — Constructive failure to exercise jurisdiction — Failure to address a material issue and material evidence APPEALS — Procedural fairness — Failure to address a material issue and material evidence APPEALS — Procedural fairness — Failure to give reasons — Adequacy of reasons Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 50, 60, 80, 81, Sch 4, cl 12 Civil and Administrative Tribunal Rules 2014 (NSW), rr 25, 38 Home Building Act 1989 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 Murnane Carpentry Pty Ltd v Kalinovski [2015] NSWCATAP 30 NSW Land and Housing Corporation v Orr [2019] 100 NSWLR 578; [2019] NSWCA 231 Origin Concepts Pty Ltd v Wynne [2022] NSWCATAP 31 P8 Auto Ltd t/as European Automotive Ballina v Dolling [2022] NSWCATAP 41 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Texts Cited: M McHugh AO QC, 'Preparing and arguing an appeal', NSW Bar Association Bar News, Winter 2010 Category: Principal judgment Parties: Dion Robert Manca (Appellant) Tullipan Homes Pty Ltd (Respondent) Representation: Counsel: D F Feller SC and I George (Appellant) J Granger (Respondent)