Kapeller v BH Australia Constructions Pty Ltd [2019] NSWCATAP 40

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Kapeller v BH Australia Constructions Pty Ltd [2019] NSWCATAP 40 Hearing dates: 21 January 2019 Date of orders: 13 February 2019 Decision date: 13 February 2019 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President Prof G Walker, Senior Member Decision: (1) Leave to appeal is granted; (2) The appeal is upheld; (3) The Tribunal orders made on 19 September 2018 in HB 17/39359 and HB 17/46098 are set aside; (4) Both applications are remitted to the Consumer and Commercial Division to a Tribunal differently constituted for redetermination; (5) If either party to the appeal wishes to make an application for costs of the appeal, such application and documents in support are to be filed and served within 14 days from the date of this decision; and (6) Submissions and documents in opposition to any costs application are to be filed and served within 14 days after the date in Order 5. Catchwords: Appeal – contract – identity of contracting builder – Home Building Act 1989 – error of law Legislation Cited: Civil and Administrative Tribunal Act 2013 Fair Trading Act 1987 Home Building Act, 1989 Cases Cited: Bass v Permanent Trustee Co Ltd [1999] HCA 9; 198 CLR 334 Codelfa Construction Pty Ltd v State Rail Authority Of NSW (1982) 149 CLR 337 Collins v Urban [2014] NSWCATAP 17 Dennis Pethybridge v Stedikas Holdings Pty Ltd [2007] NSWCA 154 Dennis Pethybridge V Stedikas Holdings Pty Ltd [2007] NSWCA 154 Harold R Finger & Co Pty Ltd v Karellas Investments Pty Ltd [2015] NSWSC 354 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 The Owners – Strata Plan No 74602 v Brookfield Australia Investments Ltd [2015] NSWSC 1916 Collins v Urban [2014] NSWCATAP 17 Texts Cited: Nil Category: Principal judgment Parties: Phillip Kapeller and Rachael Cesnik (Appellants) BH Australia Constrictions Pty Ltd (Respondent) Representation: Counsel: Mr Bland (Appellants)