Hamed v Borg [2019] NSWCATAP 38

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Hamed v Borg [2019] NSWCATAP 38 Hearing dates: 30 October 2018 Date of orders: 08 February 2019 Decision date: 08 February 2019 Jurisdiction: Appeal Panel Before: G K Burton SC, Senior Member Dr J Lucy, Senior Member Decision: (1) The appellant is granted leave to rely upon a ground of appeal which was not included in his Notice of Appeal. (2) The appeal is allowed. (3) The Tribunal's order of 18 July 2018 is set aside and, in substitution for that order, the respondent is to pay the appellant $4,649.40 within 21 days of this decision. Catchwords: APPEAL – Home Building – Where parties contracted for construction of granny flat – Where builder installed water tank on pavers - Where tank fell over causing damage – Whether Tribunal's decision that builder not responsible for collapse of tank was legally unreasonable – Whether decision was against the weight of evidence due to the Tribunal's failure to give a plumber's report any weight - Whether Tribunal failed to have regard to relevant considerations or critical evidence when failing to consider plans –Whether appellant should be permitted to raise a new ground of appeal at the hearing Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Home Building Act 1989 (NSW) Cases Cited: AAI Ltd T/as GIO v McGiffen (2016) 77 MVR 348; [2016] NSWCA 229 Allianz Australia Insurance Ltd v Cervantes (2012) 61 MVR 443; [2012] NSWCA 244 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 230 Collins v Urban [2014] NSWCATAP 17 Eadie v Harvey [2017] NSWCATAP 201 House v The King (1936) 55 CLR 499 Jegatheeswaran v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 263; [2001] FCA 865 Lee v Commissioner of Police, NSW Police Force [2017] NSWSC 1849 Legal Profession Complaints Committee v Rayney [2017] WASCA 78 Mifsud v Campbell (1991) 21 NSWLR 725 at 728; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Pholi v Wearne [2014] NSWCATAP 78 Pilbara Infrastructure Pty Ltd v Economic Regulation Authority [2014] WASC 346 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Rodger v De Gelder (2015) 71 MVR 514; [2015] NSWCA 211 Wehi v Minister for Immigration and Border Protection [2018] FCA 1176 Category: Principal judgment Parties: Ziad Hamed (Appellant) Louis Laurie Borg (Respondent) Representation: Solicitors: Z Hamed (Self Represented)(Appellant) L Bord (Self Represented)(Respondent) File Number(s): AP18/34226 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 20 July 2018 Before: S Smith, General Member File Number(s): HB 18/17767