Kapetanellis v Hatem [2016] NSWCATAP 41

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Kapetanellis v Hatem [2016] NSWCATAP 41 Hearing dates: 22 July 2015, 13 November 2015 Date of orders: 16 February 2016 Decision date: 16 February 2016 Jurisdiction: Appeal Panel Before: L Robberds QC, Senior Member D Goldstein, Senior Member Decision: 1. Pursuant to s 50(2) of the Civil and Administrative Tribunal Act, the hearing of the appellant's application to amend his notice of appeal is dispensed with. 2. Leave is granted to the appellant to amend his notice of appeal by adding a further ground of appeal in these terms: "There was a failure on the part of the Tribunal Member to provide adequate reasons for her findings in paragraph 42 of her reasons for decision." 3. The notice of appeal will be treated as having been amended to include that ground. 4. The appellant is ordered to pay the respondent's costs incurred in connection with the appellant's application to amend the notice of appeal. If those costs are not agreed then they are to be assessed under the legal costs legislation as contained and defined in the Legal Profession Uniform Law Application Act 2014….. . 5. The appellant's appeal in relation to the ground of appeal referred to in orders (2) and (3) above, is allowed. 6. The appellant's appeal in relation to the Tribunal's findings concerning item 12 – the retaining wall, is dismissed 7. The balance of the appellant's application under the Home Building Act filed in the Home Building Division of the Consumer Trader and Tenancy Tribunal on 27 September 2012 is remitted to the Consumer and Commercial Division of the Tribunal for hearing by a differently constituted Tribunal. 8. The matter is to be listed on a date to be fixed by the Registrar for further directions and the obtaining of a date for hearing. 9. The costs of the hearing of the appeal are reserved. If either party seeks an order for costs of the hearing of the appeal they should file and serve written submissions in support of the order within 21 days from the date of these orders. The other party should file and serve written submissions in reply within 21 days after service of the first written submissions. If the parties or one of them seek a hearing on the application for an order for costs, then they should list the proceedings before the Registrar to obtain a date for the hearing. Otherwise the application will be heard on the papers. Catchwords: Home Building Act 1989 – dispute as to method and cost of rectification of work carried out by owner-builder – damages to be assessed on a once and for all basis – whether leave to appeal should be granted – alleged threat to the stability of part of the work – obligation of Tribunal to give adequate reasons for decision – amendment of grounds of appeal Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Home Building Act 1989 (NSW) Cases Cited: Aon Risk Services Limited v Australian National University [2009] HCA 27 (2009) 230 CLR 175 Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Bellgrove v Eldridge [1954] HCA 36 (1954) 90 CLR 613 Collins v Urban [2014] NSWCATAP 17 Khan v Kang [2014] NSWCATAP 48 Kirkby v Coote [2006] QCA 61 Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705 The Owners Strata Plan 57504 v Building Insurer's Guarantee Corporation [2008] NSWSC 1022 Category: Principal judgment Parties: Chris Kapetanellis (Appellant) Sharyn Hatem (Respondent) Representation: Counsel: J S Drummond (Appellant) J Young (Respondent)