Dafcam Pty Ltd v Babeck; Babeck v Dafcam Pty Ltd [2016] NSWCATAP 199

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Dafcam Pty Ltd v Babeck; Babeck v Dafcam Pty Ltd [2016] NSWCATAP 199 Hearing dates: 1 February 2016 Date of orders: 02 September 2016 Decision date: 02 September 2016 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President J Harris SC, Senior Member Decision: (1) Appeal AP 15/27974 is upheld; (2) Appeal AP 15/55371 is dismissed; (3) The orders made on 10 March 2015 and on 4 September 2015 in proceedings HB 13/45811 are set aside; (4) Application HB 13/45811 is remitted to the Consumer and Commercial Division to be reheard before a differently constituted Tribunal; and (5) The builder's costs of both appeals are to be paid by the homeowners in an amount as agreed, or failing agreement as assessed under the relevant legislation. Catchwords: APPEAL – procedural fairness – impermissible use of expert's report Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Home Building Act 1989 Cases Cited: Banco De Portugal v Waterlow & Sons Pty Ltd [1932] AC 452 Bellgrove v Eldridge [1954] HCA 36 Collins v Urban [2014] NSWCATAP 17 Holley v Evatt [2014] NSWCATAP 72 Nominal Defendant v Smith [2015] NSWCA 339 Smail v D.L Starbuck Pty Ltd [1971] VR 449 Tabcorp Holdings Ltd v Bowen Investments Pty Ltd [2009] HCA 8 Toy v Registrar of Companies of NT [1985] FCA 237 Tyco Australia Pty Ltd v Optus Networks Pty Ltd & Ors [2004] NSWCA 333 White & Carter v McGregor [1962] AC 413 Category: Principal judgment Parties: Dafcam Pty Ltd (Appellant) Wolfgang and Dorothee Babeck (Respondents) Representation: Counsel: Mr Goldstein (Appellant)