Webster v Tom [2019] NSWCATAP 75

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Webster v Tom [2019] NSWCATAP 75 Hearing dates: 18 June 2018 Date of orders: 02 April 2019 Decision date: 02 April 2019 Jurisdiction: Appeal Panel Before: F Corsaro SC, Senior Member D Charles, Senior Member Decision: (1) Appeal dismissed. (2) Subject to order (3), the appellants are to pay the respondent's costs of this Appeal on the ordinary basis as agreed or as assessed in accordance with the applicable costs assessment legislation. (3) If any party contends for a different costs order, such application (including submissions and evidence) must be filed and served within 14 days of the date of these orders. The respondent to the costs application is to file and serve submissions and evidence in reply within 14 days from the date of these orders. The applicant for costs may file and serve submissions in response 14 days thereafter. Submissions must include submissions about whether an order should be made dispensing with a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). (4) In the event that an application is made under the previous order 3 above, order (2) shall cease to have effect. Catchwords: APPEALS – home building claim against builder – allegation of home owners as to a misclassification of building site by an engineer not joined as a party by the owners – terms of builder's engagement – agreed scope of works for builder - no error of law – competing expert evidence on ongoing cracking and the construction of piers - whether the Tribunal's findings were not fair and equitable or against the weight of evidence – whether new evidence was reasonably available - no other grounds for leave to appeal – appeal dismissed Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Home Building Act 1989 (NSW) Fair Trading Act 1987 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 CEU v University of Technology Sydney [2018] NSWCATAD 13 Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 Texts Cited: None Category: Principal judgment Parties: Deidree Webster & Marc Webster (Appellants) Andrew Rolf Tom (Respondent) Representation: Counsel: C Simpson (Respondent) J Priestley (Respondent Colin Jenkins, engineer in related proceedings by the builder against the engineer. File No. AP 18/17113)