Yong v Antworks Pty Ltd [2016] NSWCATAP 14

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Yong v Antworks Pty Ltd [2016] NSWCATAP 14 Hearing dates: 26 August 2015 Date of orders: 18 January 2016 Decision date: 18 January 2016 Jurisdiction: Appeal Panel Before: J Redfern, Principal Member D Goldstein, Senior Member Decision: The substantive appeal against the decisions and orders made on 14 April 2015 in HB 13/11421 and HB 66466 allowed in respect of Grounds 1 to 3, 7 to 10 and 20 and 21, dismissed in respect of Grounds 4 to 6 and 11 and leave to appeal refused in respect of Ground 19.

The costs appeal allowed.

The decisions and orders made on 14 April 2015 and 3 August 2015 in HB 13/11421 and HB 66466 are set aside and the proceedings are remitted to the Consumer and Commercial Division for reconsideration by a differently constituted Tribunal. Catchwords: APPEAL – Civil and Administrative Tribunal (NSW) – home building claims – dispute about contract – claim for defects – claim for payment and for variations alleged not to be in writing – construction of Home Building Act and Regulation – whether Tribunal failed to exercise its statutory function – failure to make findings on material issues in dispute – whether reasons adequate – principles to be applied – no denial of procedural fairness where expert relied on letter attached to report – question of weight – whether expert independent – decisions set aside and proceedings remitted for reconsideration

PRACTICE AND PROCEDURE – whether the proceedings should be remitted to differently constituted Tribunal – principles to be applied

COSTS – where costs decision based on substantive decision which has been set aside – decision set aside and remitted for reconsideration Legislation Cited: Civil and Administrative Tribunal Act 2013 Home Building Act 1989 Home Building Regulation 2004 Cases Cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 BCS v NSW Civil and Administrative Tribunal [2015] NSWSC 126 Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 CIC Allianz Australia v Daniel Luke McDonald [2012] NSWSC 887 Collins v Urban [2014] NSWCATAP 17 Fox v Australian Industrial Relations Commission [2007] FCAFC 150 IW v City of Perth [1997] HCA 30; 191 CLR 1 Khan v Kang [2014] NSWCATAP 48 McDonald v Dennys Lascelles Ltd [1933] HCA 25; (1933) 48 CLR 457 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 Newcastle City Council v GIO General Ltd [1997] HCA 53; 191 CLR 85 Pavey & Matthews Pty Ltd v Paul [1987] HCA 5; (1987) 162 CLR 221 Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 Seltsam Pty Limited v Ghaleb [2005] NSWCA 208 Yates Property Corporation Pty Ltd (In Liquidation) v Darling Harbour Authority 24 NSWLR 156 Category: Principal judgment Parties: Mr Robby Yong (Appellant) Antworks Pty Ltd (Respondent) Representation: Mr C Lambert, Barrister (Appellant) Mr P Tahar, Solicitor (Appellant) PWT Legal (Appellant)