Colourrender (Australia) Pty Ltd v Sarkis; Sarkis v Colourrender (Australia) Pty Ltd [2023] NSWCATAP 90

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Colourrender (Australia) Pty Ltd v Sarkis; Sarkis v Colourrender (Australia) Pty Ltd [2023] NSWCATAP 90 Hearing dates: 24 October 2022 Date of orders: 29 March 2023 Decision date: 29 March 2023 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President G Sarginson, Senior Member Decision: (1) The time for lodgement of the Homeowners' appeal is extended to the date of lodgement of the Homeowners' Notice of Appeal. (2) Orders 2 and 3 made in the proceedings at first instance are set aside. (3) Both appeals are upheld. (4) The Homeowners' application at first instance is remitted to the Consumer & Commercial Division to be determined in that Division (by a tribunal differently constituted) with fresh evidence, if the tribunal on remittal so determines. (5) The parties have leave to file and serve submissions with respect to costs of the appeals and costs as first instance within 21 days of the date hereof. (6) The parties have leave to file and serve submissions on costs in response to the submissions received pursuant to the above order within 21 days of the receipt of the initial submissions on costs. (7) Submissions on costs shall include whether the parties consent or oppose the Appeal Panel determining costs on the papers by making an order dispensing with a further hearing. Catchwords: APPEAL – whether Tribunal lacked jurisdiction having regard to the date of lodgement of the application – jurisdiction point not raised at first instance – calculation of quantum – whether there was procedural fairness – whether homeowners made a claim for breach of representations including whether representations were an implied term of the contract. Legislation Cited: Competition & Consumer Act 2010 (C'th) Home Building Act 1989 (NSW) Cases Cited: BKB Constructions Pty Ltd v Sawan [2022] NSWCATAP 103 Collins v Urban [2014] NSWCATAP 17 John Prendergast and Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP69 Deacon v National Strategic Constructions Pty Ltd; National Strategic Constructions Pty Ltd v Deacon [2017] NSWCATAP 185 Catapult Constructions Pty Ltd v Denison [2018] NSWCATAP 158 Kurmond Homes Pty Ltd v Marsden [2018] NSWCATAP 23 Leung v Alexakis [2018] NSWCATAP 11 Bellgrove v Eldridge [1954] HCA 36; (1954) 90 CLR 613 Walker Group Constructions Pty Ltd v Tzaneros Investments Pty Ltd [2017] NSWCA 27 Texts Cited: None cited. Category: Principal judgment Parties: Colourrender (Australia) Pty Ltd (Appellant) George Sarkis and Sonya Sarkis (Respondents)