McIntosh v Lennon [2023] NSWCATAP 83

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: McIntosh v Lennon [2023] NSWCATAP 83 Hearing dates: 30 January 2023 Date of orders: 29 March 2023 Decision date: 29 March 2023 Jurisdiction: Appeal Panel Before: G Curtin SC, Senior Member D Fairlie, Senior Member Decision: (1) The appeal is dismissed. (2) Leave to appeal is refused. (3) If any party desires to make an application for costs of the appeal: (a) that party is to inform the other party of that application within 7 days of the date of this decision; (b) the applicant for costs is to lodge with the Appeal Registry and serve on the respondent to the costs application any written submissions of no more than five pages, and any evidence relied upon, on or before 7 days from the date of this decision; (c) the respondent to any costs application is to lodge with the Appeal Registry and serve on the applicant for costs any written submissions of no more than five pages, and any evidence relied upon, on or before 14 days from the date of this decision; (d) any reply submissions limited to three pages, and any evidence in reply, are to be lodged with the Appeal Registry and served on the other party within 21 days of the date of this decision; (e) the parties are to indicate in their submissions whether they consent to an order dispensing with an oral hearing of the costs application, and if they do not consent, submissions of no more than one page as to why an oral hearing should be conducted rather than the application being determined on the papers. Catchwords: BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — owner – father purchases property in the name of his daughter - resulting trust – presumption of advancement rebutted – beneficiary of resulting trust within the definition of "owner" in the Home Building Act BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) – owner-builder – owner-builder undertakes residential building work without an owner-builder permit – definition of owner-builder in the Home Building Act – proper interpretation of definition of owner-builder – legal meaning differs from literal meaning – definition includes owner-builders who undertake residential building work without a permit – alternatively, permissible to read definition as if it contained additional words – principles to apply when reading additional words into statute Legislation Cited: Home Building Act 1989 (NSW), ss 18B(1), 18C(1), 18D(1),18E(4), 32AA, 95, 127A, Sch 1, Sch 4 cll 121, 131 Home Building Amendment Act 2014 (NSW), Sch 1 cl 87 Cases Cited: Allianz v Waterbrook [2009] NSWCA 224 Bosanac v Commissioner of Taxation [2022] HCA 34; [2022] 405 ALR 424 Collins v Urban [2014] NSWCATAP 17 Gardez Nominees Pty Ltd v NSW Self Insurance Corporation [2016] NSWSC 532 Gunn & Anor v Steain & Ors [2003] NSWSC 1076 Koprivnjak v Koprivnjak [2023] NSWCA 2 Marshall v Watson (1972) 124 CLR 640; [1972] HCA 27 Metwally v University of Wollongong [1985] HCA 28; (1985) 59 ALJR 481 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Sorbello & Donnelly v Whan [2007] NSWSC 951 Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 The Owners – Strata Plan 81837 v Multiplex Hurstville Pty Ltd [2018] NSWSC 1488 Texts Cited: Nil Category: Principal judgment Parties: Alan Patrick McIntosh (Appellant) Stephen Mark Lennon (First Respondent) Glenda Lennon (Second Respondent) Representation: Counsel: C Simpson (Appellant) A Crossland (Respondents)