NSW Caselaw
New South Wales District Court
CITATION: Owners of Strata Plan 41100 v Pender & Sons Pty Ltd [2009] NSWDC 59
HEARING DATE(S): 20 February 2009 and 5 March 2009
JUDGMENT DATE: 15 April 2009
JURISDICTION: Civil
JUDGMENT OF: Hungerford ADCJ
DECISION: Appeal is dismissed; parties to be heard on costs before final orders are made.
CATCHWORDS: APPEAL - Against decision of Consumer, Trader and Tenancy Tribunal - Whether a question with respect to a matter of law - Nature of the appeal - Tribunal's decision based on a finding of fact - Grounds of appeal involved questions of fact only - Futility of a rehearing even if grounds of appeal established as questions of law - CONTRACTS - Building contract - Construction of contract - Whether contract to produce a satisfactory result or for performance of specified work - Whether characterisation of contract a question of fact or of law or of mixed fact and law - Scope of works - Provision of plans and specifications incorporated into contractual arrangments
LEGISLATION CITED: Consumer, Trader and Tenancy Tribunal Act 2001, ss 67(1), 67(3), 67(7) and 68 Home Building Act 1989, ss 18B, 48A(1)(a), 48K and 92
Bowes v Shand [1877] 2 App Cas 455 Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153 Cable v Hutcherson (1969) 123 CLR 143 Chapman v Taylor [2004] NSWCA 456 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 CASES CITED: Hospital Products Pty Ltd v United States Surgical Corporation (1984) 156 CLR 41 Jackson Nominees Pty Ltd v Hanson Building Products Pty Ltd [2006] QCA 159 Kalokerinos v HIA Insurance Services Pty Ltd [2004] NSWCA 312 Leichhardt Municipal Council v Seatainer Terminals Pty Ltd (1981) 48 LGRA 409 Miller v Commissioner of Police [2004] NSWCA 356 Skinner & Edwards (Builders) Pty Ltd v Australian Telecommunications Corporation (1992) 27 NSWLR 567 Victims Compensation Fund Corporation v District Court of New South Wales [2002] NSWCA 355
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