Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Pedonese v McRae [2016] NSWCATAP 101 Hearing dates: 12 April 2016 Date of orders: 10 May 2016 Decision date: 10 May 2016 Jurisdiction: Appeal Panel Before: O Shub, Principal Member J Wakefield, Senior Member Decision: Appeal allowed. Catchwords: Administrative law, Civil and Administrative Tribunal (NSW), Flooring, defective workmanship, decision not just and equitable, against the weight of the evidence and new evidence which was not reasonably available at the time of the hearing Legislation Cited: Consumer Claims Act 1998 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Category: Principal judgment Parties: Tyrone Pedonese (Appellant) Ian McRae (Respondent) File Number(s): AP 16/05685 Decision under appeal Court or tribunal: Tribunal Jurisdiction: Consumer & Commercial Division Date of Decision: 26 November 2015 Before: K Ross, General Member File Number(s): GEN 15/33987 reasons for decision Background 1. The Appellant and Respondent entered into a contract for the laying of wooden flooring at the Appellant's home. The Appellant sought an order from the Tribunal that the Respondent pay in compensation of $40,000 for the replacement of flooring laid by the Respondent and the Respondent deposed the order sought. At the Tribunal hearing the Tribunal member, amongst other orders, made an order that the Respondent was to remove the flooring and reinstall it with the industry recommended adhesive and mechanical fixing. The Appellant appealed against that decision. The reasons for decision (the decision) were given on 26 November 2015 and the Notice of Appeal was filed on 3 February 2016 and accordingly required leave of the appeal panel to proceed with the appeal. 2. In light of the settlement, which is referred to below, and in the absence of any objection by the Respondent, we made an order pursuant to section 41 of the Civil and Administrative Tribunal Act 2013 (NSW) (CATA) extending the time for the filing of the appeal to 4 February 2015. Appeal 1. At the commencement of the appeal there was discussion about the possibility of the parties reaching a negotiated settlement and, following a short conciliation before a member the parties agreed upon terms. In light of the agreement the Appeal Panel, pursuant to its authority under section 81(1)(b) of CATA determined to vary order 1 of the decision. The following orders were substituted for order 1: 1. The Respondent will return and carry out work as per the work order issued by the Tribunal on 26 November 2016; 2. In addition, he will dismantle and re-erect a kitchen island bench; 3. He will disconnect and reconnect all water and power using licensed tradesmen; 4. The Respondent will agree to the Appellant engaging a competent person to inspect all work being carried out, to issue any necessary instructions and to certify that the work has been carried out in; 1. Proper and workman like manner; 2. In accordance with BCA, if relevant; 3. In accordance with all applicable Australian standards. 1. The Respondent will pay the cost of the third party expert. 1. The remaining orders, numbered 2 and 3, of the decision are renumbered to accommodate the new orders. Decision 1. By consent: 1. The appeal is allowed; 2. The Respondent will return and carry out work as per the work order issued by the Tribunal on 26 November 2016; 3. In addition, he will dismantle and re-erect a kitchen island bench; 4. He will disconnect and reconnect all water and power using licensed tradesmen 5. The Respondent will agree to the Appellant engaging a competent person to inspect all work being carried out, to issue any necessary instructions and to certify that the work has been carried out in; 1. Proper and workman like manner; 2. In accordance with BCA, if relevant; 3. In accordance with all applicable Australian standards. 1. The Respondent will pay the cost of the third party expert. 2. Orders 2 and 3 made on 26 November 2015 are renumbered 7 and 8. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar Amendments 10 May 2016 - Corrected clerical error on coversheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 May 2016