Hunter Homes Pty Ltd v Layzell [2023] NSWCATAP 209

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Hunter Homes Pty Ltd v Layzell [2023] NSWCATAP 209 Hearing dates: 24 July 2023 Date of orders: 31 July 2023 Decision date: 31 July 2023 Jurisdiction: Appeal Panel Before: G Blake AM SC, Senior Member L Wilson, Senior Member Decision: (1) The appeal is allowed. (2) Order (1) made on 11 May 2023 is set aside. (3) The issues of whether the appellant was precluded from exercising its right to terminate the contract in reliance on the breach of clause 4.1(d) by the respondent on the grounds that it was in breach of its obligation to act in good faith and/or it acted unconscionably are remitted to the Consumer and Commercial Division of the Tribunal as originally constituted on the basis of the evidence of the parties and such further evidence as the Tribunal may allow. (4) The respondent is to pay the appellant's costs of the appeal as agreed or assessed under the applicable costs legislation. (5) If any party wishes to make an application to vary order (4) above, the applicant (the costs applicant) must file and serve a costs application, including submissions limited to three pages and any evidence in support, on or before 14 days from the date of this decision. (6) The respondent to the costs application is to file and serve any submissions limited to three pages and any evidence in reply on or before 28 days from the date of this decision. (7) The costs applicant is to file any submissions limited to two pages in reply on or before 35 days from the date of this decision. (8) 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: APPEALS — Appeal on question of law – Scope of question of law APPEALS — Leave to appeal — Principles governing BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — Building dispute – whether the builder was entitled to terminate the contract by reason the failure of the owner to provide information within the specified time CONTRACTS — Construction — Interpretation – standard form contract to which terms have been added – greater weight given to added terms in event of inconsistency CONTRACTS — Construction — Interpretation - where waiver must be in writing Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 60, 80, 81, Sch 4, cl 12 Civil and Administrative Tribunal Rules 2014 (NSW), rr 25, 38A Home Building Act 1989 (NSW) Cases Cited: Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (2020) 275 FCR 385; [2020] FCAFC 50 Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 Collins v Urban [2014] NSWCATAP 17 Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33 Jain v Dr N Kalokerinos Pty Ltd [2023] NSWCATAP 141 MP Water Pty Ltd v Veolia Water Australia Pty Ltd (No 3) [2021] NSWSC 1023 Naish aka Khosroabadi v NSW Land and Housing Corporation [2023] NSWCATAP 99 NEXTracker Inc v ACN 003 905 093 Pty Ltd (formerly RCR O'Donnell Griffin Pty Ltd) (In Liquidation) [2019] NSWSC 1604 Rivat Pty Ltd v B & N Elomar Engineering Pty Ltd [2007] NSWSC 638; (2007) NSW Conv R 56-186 Thomas and Naaz Pty Ltd (ACN 101 491 703) v Chief Commissioner of State Revenue [2022] NSWCATAP 220 Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 Willis Australia Ltd v AMP Capital Investors Ltd [2023] NSWCA 158 Yuen v Thom [2016] NSWCATAP 243 Texts Cited: None cited Category: Principal judgment Parties: Hunter Homes Pty Ltd (Appellant) Christopher Layzell (Respondent) Representation: Counsel: N Simpson (Appellant) D Robertson (Respondent)