Sydney Contracting Engineers Pty Ltd v; Gulawita [2024] NSWCATAP 231

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Sydney Contracting Engineers Pty Ltd v; Gulawita [2024] NSWCATAP 231 Hearing dates: 10 October 2024 Date of orders: 19 November 2024 Decision date: 19 November 2024 Jurisdiction: Appeal Panel Before: P H Molony, Senior Member J Ledda, Senior Member Decision: (1) Mr Ahmad Karnib is granted leave to represent the Appellant in the appeal. (2) Leave to appeal is granted to the extent it is necessary for appeal ground 2. (3) The appeal is allowed. (4) The order made by the Tribunal on 17 July 2024 in proceedings 2023/00379909 (formerly HB 23/37734) for the Appellant is to pay the Respondent $8,861.26 is set aside. (5) The proceedings are remitted to the Tribunal constituted by the same Member, if available, to redetermine the proceedings in accordance with these reasons with no further evidence allowed. (6) If a party wishes to seek an order for costs in the appeal, the following directions apply: (a) The party seeking the costs order (the costs applicant) must lodge with the Tribunal and serve on the other party (the costs respondent) their application for costs, along with any supporting submissions (not exceeding five pages in length) and evidence, within 14 days of the date of this decision. (b) The costs respondent must lodge with the Tribunal and serve on the costs applicant any written submissions (not exceeding five pages in length) and evidence in response within a further 14 days of receipt of the costs applicant's submissions. (c) The costs applicant may lodge with the Tribunal and serve on the costs respondent any written submissions (not exceeding 3 pages) in reply within a further 7 days of receipt of the costs respondent's submissions. (d) The parties are to address in their submissions whether, pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW), the Appeal Panel should dispense with a hearing on the issue of the costs of the appeal so that the issue is decided on the papers lodged with the Tribunal and with appearances of the parties not required. Catchwords: BUILDING AND CONSTRUCTION — proceedings transferred under Home Building Act 1989 (NSW) to NSW Civil and Administrative Tribunal from Local Court APPEALS — whether appeal involves questions of law or other questions — whether decisions under appeal against weight of evidence or not just and equitable — impact of failure to lodge appeal materials as directed — use of reply to appeal to raise appeal ground Legislation Cited: Building and Construction Industry Security for Payment Act 1999 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Home Building Act 1989 (NSW) Cases Cited: Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (2020) 275 FCR 385; [2020] FCAFC 50 Boreland v Brewis [2024] NSWCATAP 140 Collins v Urban [2014] NSWCATAP 17 Commissioner of Police, NSW Police Force v FYH [2024] NSWCATAP 176 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Lo v Chief Commissioner of State Revenue (2013) 85 NSWLR 86; [2013] NSWCA 180 Martins-Lopes v Keller [2024] NSWCATAP 215 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 Pridgeon v Medical Council of New South Wales [2022] NSWCA 60 Qin v Billings [2015] NSWCATAP 105 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 Texts Cited: Standards Australia. (2005). General conditions of contract (AS 4000:1997) Category: Principal judgment Parties: Sydney Contracting Engineers Pty Ltd (Appellant) Nadeesh Anuranga Gulawita (Respondent) Representation: Solicitors: Ahmad Karnib, Karnib Law Group (Appellant)