Rockwall Constructions Pty Ltd v Nayak [2017] NSWCATAP 226

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Rockwall Constructions Pty Ltd v Nayak [2017] NSWCATAP 226 Hearing dates: 17 May 2017 and 30 August 2017 Date of orders: 08 December 2017 Decision date: 08 December 2017 Jurisdiction: Appeal Panel Before: K Rosser, Principal Member G Sarginson, Senior Member Decision: (1) Leave to appeal is refused.

(2) The appeal is dismissed.

(3) The stay order made on 22 March 2017 is lifted.

(4) Any application for costs is to be made in writing to the Tribunal (with a copy sent to the other party) within 14 days of the date of publication of these reasons for decision and is to be accompanied by a submission not exceeding three pages in length.

(5) Any submission in response to the costs application is not to exceed three pages in length and is to be provided to the Tribunal and the other party within 14 days of receipt of the costs application.

(6) Any submission in reply is to be provided to the Tribunal within seven days thereafter.

(7) In their submissions on costs, the parties are to address whether the issue of costs can be determined without a hearing, on the basis of the written submissions. Catchwords: APPEAL – jurisdiction – right to hearing on the merits – mitigation of loss Legislation Cited: Civil and Administrative Tribunal Act 2013 ss 36, 38, 55, 80, cl 10 Sch 4, cl 12 Sch 4 Civil and Administrative Tribunal Rules 2014 cl 38A Home Building Act 1989 ss 48L, 48K Civil Procedure Act 2005 s 91 Legal Profession Uniform Law Application Act 2014 Cases Cited: Collins v Urban [2014] NSWCATAP 17 Pople v Evans [1969] 2 All ER 743 Birkett v James [1978] AC 297. Madden v Kirekegord Elwood and Partners [1983] 1 Qd R 649 Raw Business Services Pty Ltd v Felekos [2014] NSWCATAP 89 Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2) [2016] NSWCA 397 Attorney-General for the State of Victoria v Weston [2004] VSC 314 Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251 Batistatos v Roads and Traffic Authority of NSW [2006] HCA 27; (2006) 226 CLR 256 Castle Constructions Pty Ltd v Fekula Pty Ltd [2006] NSWCA 133 The Owners - Strata Plan No 76674 v Di Blasio Constructions Pty Ltd [2014] NSWSC 1067 Sotiros Shipping Inc. and Aeco Maritime S.A. v. Sameiet Solholt; (The 'Solholt') (1983) 1 Lloyds Rep, 605 Anderson v Armitage [2015] NSWCATAP 72 Texts Cited: Colbran, Spender, Douglas and Jackson Civil Procedure Commentary and Materials (6th ed) Lexis Nexis Butterworths [2015] Category: Principal judgment Parties: Rockwall Constructions Pty Ltd (Appellant) Srinivas Nayak and Deepti Nayak (Respondents) Representation: Ms J E Stuckey-Clarke of Counsel for the Appellant, instructed by A.I Legal