Ilvariy Pty Ltd trading as Craftsman Homes Northern Rivers v Moss & Ors [2009] NSWCA 207

Reported Decision: 74 NSWLR 710

New South Wales Court of Appeal

CITATION: Ilvariy Pty Ltd trading as Craftsman Homes Northern Rivers v Moss & Ors [2009] NSWCA 207

HEARING DATE(S): 15/07/09

JUDGMENT DATE: 17 August 2009

JUDGMENT OF: Campbell JA at 1; Young JA at 2; Handley AJA at 3

DECISION: Appeal dismissed with costs, including the costs of the third and fourth respondents as submitting respondents.

CATCHWORDS: APPEAL - new point of law raised on appeal – not entertained unless the facts fully found or admitted. - APPEAL – appeal from Consumer Trader and Tenancy Tribunal to Supreme Court - limited to questions of law decided by Tribunal – new point cannot be entertained. - CONSUMER TRADER AND TENANCY TRIBUNAL - appeal to Supreme Court - limited to questions of law decided by Tribunal - new point of law cannot be entertained on appeal. - RES JUDICATA - issue estoppel from dismissal limited to the actual ground for dismissal. - RES JUDICATA - action for price of work and labour - judgment for proprietor - no cause of action or issue estoppel against action by proprietor for breach of warranty.

LEGISLATION CITED: Consumer Trader and Tenancy Tribunal Act, s 67(1)

Bahadori v Permanent Mortgages Pty Ltd [2008] NSWCA 150, 72 NSWLR 446 Blair v Curran [1939] HCA 23, 62 CLR 464 CASES CITED: Brewarrina Shire Council v Beckhaus Civil Pty Ltd [2005] NSWCA 248 Davis v Hedges (1871) LR 6 QB 687 Suttor v Gundowda Pty Ltd [1950] HCA 35, 81 CLR 418

Ilvariy Pty Ltd t/as Craftsan Homes Northern Rivers - Appellant Wayne Robert Moss - First Respondent PARTIES: Jaclyn Burrows-Moss - Second Respondent Vero Insurance Limited - Third Respondent Consumer Trader and Tenancy Tribunal - Fourth Respondent