Scarano v Palm Pools and Spas Pty Ltd [2019] NSWCATAP 79

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Scarano v Palm Pools and Spas Pty Ltd [2019] NSWCATAP 79 Hearing dates: 13 December 2018 Date of orders: 04 April 2019 Decision date: 04 April 2019 Jurisdiction: Appeal Panel Before: S Higgins, Senior Member Dr J Lucy, Senior Member Decision: (1) Leave is refused to raise a new ground on appeal. (2) The appeal is dismissed Catchwords: HOME BUILDING – Whether the Tribunal erred in failing to find that an agreed damages clause is a penalty clause – Whether the appellant should be granted leave to raise a ground on appeal which was not argued before the Tribunal –– Whether the Tribunal should have considered the appellant's claim under the Australian Consumer Law instead of the Contracts Review Act Legislation Cited: Australian Consumer Law Civil and Administrative Tribunal Act 2013 (NSW) Competition and Consumer Act 2010 (Cth) Contracts Review Act 1980 (NSW) Fair Trading Act 1987 (NSW) Home Building Act 1989 (NSW) Home Building Regulation 2014 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Coulton v Holcombe (1986) 162 CLR 1 Dunlop Pneumatic Tyre Co Ltd v New Garage & Motor Co Ltd [1915] AC 79 Esanda Finance Corp Ltd v Plessnig (1989) 166 CLR 131 Gan v Shop 3, 228-230 Hanvaylee Parade Kensington Pty Ltd [2016] NSWCATAP 210 Pholi v Wearne [2014] NSWCATAP 78 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Texts Cited: Nil Category: Principal judgment Parties: Andrew Scarano (Appellant) Palm Pools and Spas Pty Ltd (Respondent) Representation: Solicitors: A Scarano (Self Represented)(Appellant) Mr Awadallah (Respondent's General Manager) (Respondent) File Number(s): AP18/41100 Publication restriction: None Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 31 August 2018 Before: P French, General Member File Number(s): HB 18/18200; HG 18/18982