Petropoulos v CPD Holdings Pty Ltd t/as The Bathroom Exchange [2018] NSWCATAP 72

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Petropoulos v CPD Holdings Pty Ltd t/as The Bathroom Exchange [2018] NSWCATAP 72 Hearing dates: 12 February 2018 Date of orders: 27 March 2018 Decision date: 27 March 2018 Jurisdiction: Appeal Panel Before: Hennessy LCM, Deputy President G Sarginson, Senior Member Decision: 1. Leave is refused for Ms Petropoulos to appeal on grounds other than a question of law. 2. The appeal is upheld in part. 3. The Tribunal's decision that CPD Holdings Pty Ltd did not breach any of the statutory warranties in the Home Building Act 1989 (NSW) in relation to the size of the shower screen is set aside. 4. In substitution for that decision, a decision is made that CPD Holdings Pty Ltd breached the statutory warranty in s 18B(1)(a) of the Home Building Act 1989 (NSW) in relation to the size of the shower screen. 5. Parties are to provide further written submissions on the appropriate remedies, if any, in relation to that breach, in accordance with the directions given at [32] of these reasons. 6. The appeal is otherwise dismissed. 7. Each party is to provide further submissions in relation to the costs of the appeal by the same dates as are specified in [32]. Catchwords: HOME BUILDING – appeal on question of law - application for leave to appeal on other grounds - breach of statutory warranties – misleading or deceptive conduct Legislation Cited: Home Building Act 1989 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: ASIC v Fortescue Metals Group Ltd (2011) 190 FCR 364 Australian Broadcasting Commission v Bond (1990) 170 CLR 321 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Bateman v Slatyer (1987) 71 ALR 553 Collins v Urban [2014] NSWCATAP 17 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 Pappas v Soulac Pty ltd (1983) 50 ALR 231 Perpetual Trustee Company Limited v Peter Ishak [2012] NSWSC 697 Toll (FCGT) Pty Ltd v Alphapharm Pty Ltd [2004] HCAT 52; 219 CLR 165 Kurmond Homes Pty Ltd v Marsden [2018] NSWCATAP 23 Cherry v Steele-Park [2017] NSWCA 295 Texts Cited: Aronson and Groves, Judicial Review of Administrative Action, (5th ed Law Book Company 2013) Category: Principal judgment Parties: Thea Petropoulos (Appellant) CPD Holdings Pty Ltd t/as The Bathroom Exchange (First Respondent) James Morphett (Second Respondent) Representation: Counsel: M McMahon (Appellant) M Newton (Respondents)