Timilty Constructions Pty Ltd v Culina [2023] NSWCATAP 28

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Timilty Constructions Pty Ltd v Culina [2023] NSWCATAP 28 Hearing dates: 17 October 2022 Date of orders: 3 February 2023 Decision date: 03 February 2023 Jurisdiction: Appeal Panel Before: G Sarginson, Senior Member M Gracie, Senior Member Decision: (1) Leave to appeal is granted (2) The appeal is allowed in part. (3) Vary the Tribunal's decision dated 23 June 2022 by ordering the appellant to pay the respondent the sum of $53,171.59 within 28 days of the publication of these Reasons for Decision. (4) Lift the stay granted on 14 September 2022. (5) Any costs application is to be made in the following manner: (a) Costs applicant is to file with the Appeal Panel and serve on the costs respondent submissions and documents on the issue of costs by 14 days from the date of this decision. (b) Costs respondent is to file with the Appeal Panel and serve on the costs applicant submissions and documents on the issue of costs by 28 days from the date of this decision. (c) Costs applicant is to file with the Appeal Panel and serve on the costs respondent submissions in reply on the issue of costs by 35 days from the date of this decision. (d) The costs submissions are to refer to whether a party seeks an oral hearing on the issue of costs or whether the party agrees to the issue of costs being determined on the papers in accordance with s 50 (2) of the Civil and Administrative Tribunal Act 2013 (NSW). (e) All costs submissions and documents must be filed in hard copy with the Appeal Panel. (f) Both parties may apply in writing to the Appeal Panel to vary the procedural directions regarding determination of any costs application, but an application to vary must be filed with the Appeal Panel and served on the other party no later than the day prior to the date of compliance with the applicable order. Catchwords: APPEAL – NCAT - leave to appeal from decision of Consumer and Commercial Division of NCAT – whether Tribunal failed to consider or give reasons for not accepting evidence – no question of law -alternatively, whether findings against the weight of evidence - new evidence – whether excessive uplift for preliminaries, builder's margin and contingencies – whether allowance for contingencies was not fair and equitable - Tribunal's decision varied in part – late application by appellant to vary Tribunal's money order for a work order Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Home Building Act 1989 (NSW) Cases Cited: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 Blackhall v Fine Cut Building Pty Ltd [2021] NSWCATCD 43 Collins v Urban [2014] NSWCATAP 17 Croghan v Rees [2021] NSWCATAP 328 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 DVE18 v Minister for Home Affairs [2020] FCAFC 83; (2020) 276 FCR 401 Goncalves v Bora Developments Pty Ltd [2021] NSWCATAP 231 House v King [1936] HCA 40; 55 CLR 499 Kurmond Homes Pty Ltd v Marsden [2018] NSWCATAP 2 Leung v Alexakis [2018] NSWCATAP 11 New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 Oshlack v Richmond River Council [1998] HCA 11; (1989) 193 CLR 72. Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Texts Cited: None cited Category: Principal judgment Parties: Timilty Constructions Pty Ltd (Appellant) Dean Culina (Respondent) Representation: Counsel: D Southwood (Appellant)