Sea Breeze Homes v Heffley [2017] NSWCATAP 99

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Sea Breeze Homes v Heffley [2017] NSWCATAP 99 Hearing dates: 7 April 2017 Date of orders: 04 May 2017 Decision date: 04 May 2017 Jurisdiction: Appeal Panel Before: K Rosser, Principal Member F Corsaro SC, Senior Member Decision: 1. Leave to appeal is refused. 2. The appeal is dismissed. Catchwords: Appeal – No question of law – Whether leave ground established Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Rules 2014 Fair Trading Act 1987 Home Building Act 1989 Cases Cited: Collins v Urban [2014] NSWCATAP 17 Westport Insurance Corporation v Gordian Runoff Ltd (2011) CLR 239 Category: Principal judgment Parties: Sea Breeze Trading Pty Ltd t/as Sea Breeze Homes (Appellant) Susan Heffley (Respondent) Representation: Mr Hing (Director, applicant) S Heffley (Respondent in person) File Number(s): AP 16/54589 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 24 November 2016 Before: W Priestley, General Member File Number(s): HB16/33939 (previously GEN 16/33939)

reasons for decision

Introduction 1. This an internal appeal against a decision made on 24 November 2016 in the Consumer and Commercial Division of the Tribunal in proceedings HB16/33939. The Tribunal ordered the appellant (Sea Breeze) to pay the respondent (Ms Heffley) the sum of $7,255. This decision took into account findings made in a related application brought by Sea Breeze against Ms Heffley: HB16/42577. 2. Mrs Heffley's application was originally filed as a consumer claim under the Fair Trading Act 1987 and was allocated file number GEN16/33939. However, both applications were decided under the Home Building Act 1989 (the HB Act), the Tribunal having found that the services Sea Breeze provided to Mrs Heffley were building services as defined in s 48A of that Act. 3. Sea Breeze disputed two findings made by the Tribunal. First, it disputed the Tribunal's findings in relation to a $5,500 "engagement deposit". Second, it disputed the Tribunal's finding in relation to an architect's second fee, also in the sum of $5,500. 4. Appeals made in respect of decisions other than in residential proceedings must be filed within 28 days from the day on which the appellant was notified of the decision to be appealed or given reasons for the decision, whichever is the later: cl 25(4)(c) of the Civil and Administrative Rules 2014 (the Rules). 5. Sea Breeze filed the notice of appeal on 19 December 2016, which means that the appeal is within time. 6. For the reasons set out below, we have refused leave to appeal and dismissed the appeal.