Pettigrew v Gateway Fence Installations Pty Ltd [2016] NSWCATAP 181

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Pettigrew v Gateway Fence Installations Pty Ltd [2016] NSWCATAP 181 Hearing dates: 23 May 2016, additional written submissions dated 30 May 2016 and 3 June 2016. Date of orders: 10 August 2016 Decision date: 10 August 2016 Jurisdiction: Appeal Panel Before: P Durack SC, Senior Member G Meadows, Senior Member Decision: 1. The appeal is allowed. 2. Set aside the orders made by the Tribunal at first instance. 3. Remit the whole of the case for reconsideration by a differently constituted Tribunal on the basis that the failure to comply with s7AAA of the Home Building Act 1989 (NSW) does not result in the contract for the fence being unenforceable. 4. Directions to be made by the Tribunal for the service of any additional evidence and submissions by the parties. Catchwords: APPEAL – home building – manufacture and installation of fence – failure to comply with s 7AAA of the Home Building Act– consequence of such failure – contract not unenforceable - dispute as to oral terms – factual errors as to the nature of the case - incorrect evidence led to error about important fact – error of law in asking the wrong question - substantial miscarriage of justice. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Home Building Act 1989 (NSW) Home Building Amendment Act 2011 (NSW) Home Building Regulation 2014 (NSW) Texts Cited: Bambagiotti, Building Disputes and the Home Building Act 1989 (NSW)(Lawbook, Thomson Reuters, 2012) Category: Principal judgment Parties: John Pettigrew (Appellant) Gateway Fence Installations Pty Ltd (Respondent) Representation: Both parties were unrepresented. File Number(s): AP 16/12488 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 15 February 2016 Before: M Cohen, Member File Number(s): HB 15/55483