Vella v Mir [2019] NSWCATAP 28

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Vella v Mir [2019] NSWCATAP 28 Hearing dates: 6 August 2018 Date of orders: 31 January 2019 Decision date: 31 January 2019 Jurisdiction: Appeal Panel Before: K Rosser, Principal Member J Kearney, Senior Member Decision: (1) The appeal is allowed in part. (2) The orders made on 13 March 2018 and 10 May 2018 in proceedings HB 16/34141 are set aside. (3) John Vella is removed as a party to the Appeal and the Tribunal proceedings. (4) The matter will be listed for directions to set a timetable for any additional submissions and to determine the manner in which the appeal will be finally disposed. (5) Any application for costs of the appeal proceedings is to be filed and served within 14 days of publication of these orders, with any response to the costs application to be filed and served within 14 days thereafter. (6) If more than one party makes an application for costs, the parties are to file three copies of the costs submissions in indexed, tabbed and paginated bundles at the end of the submission period. Catchwords: APPEAL – Home Building – Definition of major defect – Limitation defence or jurisdictional issue – s 18F defence – Jones v Dunkel inference Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Home Building Act 1989 Cases Cited: Allianz v Waterbrook [2009] NSWCA 224 Australian Education Union v Lawler [2008] FCAFC 135 Bellgrove v Eldridge (1954) 90 CLR 613 Collins v Urban [2014] NSWCATAP 17 Gregorio v Cheadle [2018] NSWCATAP 118 Jones v Dunkel (1959) 101 CLR 298 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 Pastrovic & Co Pty Ltd v Farrington [2011] NSWDC 94 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 The Craftsmen Restoration and Renovations v Thomas Boland, Thomas Boland v The Craftsmen Restoration and Renovations [2008] NSWSC 660 Vero Insurance Ltd v Buckle; Reynell v Buckle [2008] NSWSC 73 Texts Cited: Cross on Evidence, 11th Ed (2017), JD Heydon Category: Principal judgment Parties: Joyce and John Vella (Appellants) Sidney and Marie Mir (First Respondents) Brownlow Hill Building Services t/as Cathayne Constructions (Second Respondent) Representation: Counsel: P Bambiogiotti with B Pluznyk (Appellants) T Flaherty (First Respondent) R Zikmann (Second Respondent)