Longbottom v Boughton [2020] NSWCATAP 53

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Longbottom v Boughton [2020] NSWCATAP 53 Hearing dates: 29 January 2020 Date of orders: 23 March 2020 Decision date: 23 March 2020 Jurisdiction: Appeal Panel Before: Dr R. Dubler SC, Senior Member D. Charles, Senior Member Decision: In respect of appeal AP19/50591, the orders will be: (1) Leave to appeal is refused. (2) Appeal is dismissed. In respect of appeal AP19/46638: (1) The appeal is allowed in part. (2) Set aside order 1 of the orders of K. Ross, Senior Member, made 18 September 2019. (3) In lieu thereof, Gregory Ross Boughton is to pay to Dale Longbottom and Natalie Longbottom the sum of $51,719.01. In respect of both AP19/46638 and AP19/50591, the following directions are made: (1) Each party is to give to the Appeal Panel and the other party any application for costs, including in respect of costs of the hearing at first instance, and submissions in support within 14 days of these orders. (2) Each party is to give to the Appeal Panel and the other party any submissions in reply within 14 days thereafter. (3) Any such submissions shall include submissions as to whether the Appeal Panel should make an order dispensing with a hearing in respect of the issue of costs pursuant to s.50(3) of the Civil and Administrative Tribunal Act 2013 (NSW). Catchwords: HOME BUILDING – whether the Tribunal erred in finding that the home owners had denied the plasterers access to the home building site – whether the home owners had denied the builder access to the home building site – whether the home owners by invoking the dispute resolution mechanism prevented the builder from terminating the home building contract – whether the home owners in denying the builder access to the home building site repudiated the building contract – whether the builder was entitled to terminate the home building contract –whether the Tribunal erred in dismissing the claim of misleading and deceptive conduct under the Australian Consumer Law (NSW) APPEAL – whether a disputed finding of fact in a reply to appeal requires leave to appeal - whether the question as to whether or not, based upon facts fully found by the Tribunal, there is a repudiation of the contract, is a question of law Legislation Cited: Australian Consumer Law 2010 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2013 (NSW) Home Building Act 1989 (NSW) Uniform Civil Procedure Rules 2005 Cases Cited: All Options Pty Ltd v Flight Deck Geelong Pty Ltd [2019] FCA 588 Collins v Urban [2014] NSWCATAP 17 Commissioner of Taxation v Sara Lee Household & Body Care (2000) 201 CLR 520 Coulton v Holcombe (1986) 162 CLR 1 Elders Trustee and Executor Co Ltd v E G Reeves Pty Ltd [1987] FCA 332; 178 ALR 193 Global Sportsman Pty Ltd v Mirror Newspapers Ltd (1984) 2 FCR 82 Hornsby Building Information Centre v Sydney Building Information Centre (1978) 140 CLR 216 Hawes v Dean [2014] NSWCA 380 Ireland v WG Riverview Pty Ltd [2019] NSWCA 3007 Lifestyle Designer Homes Pty Ltd v Choy [2012] NSWCTTT 217 Lodder v Slowey (1901) 20 NZLR 321 Mann v Patterson Constructions Pty Ltd [2019] HCA 32 Parkdale Custom Built Furniture v Buku (1982) 149 CLR 191 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17 McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457 Shevill v Builders Licensing Board (1982) 149 CLR 620 Simmonds v Rust; Rust v Simmonds [2018] NSWCATCD 75 Yorke v Lucas (1985) 158 CLR 661 Texts Cited: None Category: Principal judgment Parties: Gregory Ross Boughton (Appellant – Builder) Dale Longbottom and Natalie Longbottom (Respondents – Home Owners) Representation: Counsel: A. Justice for the Builder J. Weightman for the Home Owners