Australia: Residential Focus - 14 October 2015

Last Updated: 21 October 2015
Article by Christine Jones
Most Read Contributor in Australia, September 2017

On September 30 2015 the NSW Civil and Administrative Tribunal (NCAT) Appeal Panel handed down its decision in Emmery v Smith [2015] NSWCATAP 212 dismissing an appeal and refusing further leave to appeal a decision of the Consumer and Commercial Division of NCAT. 

The respondent homeowner and the applicant builder entered into a contract for residential building work.  The respondent claimed that the appellant breached the contract and statutory warranties by overcharging for materials, failing to obtain home warranty insurance, undertaking electrical work without a licence and delaying work.  The respondent further claimed that there were numerous building defects which justified ending the contract.  The Tribunal below found in favour of the home owner.

The Appeal Panel's decision dismissing the builder's appeal serves as a useful reminder about key elements of NCAT practice.

No appeal as of right on questions of fact

The Appeal Panel held that the builder's grounds of appeal did not raise questions of law, but rather questions of fact.  Section 80(2) of the NCAT Act provides that an appeal may be made as of right on any question of law, or with leave of the Appeal Panel on any other grounds.  The Appeal Panel also considered if the appellant had suffered a substantial miscarriage of justice, such as to justify leave to appeal.  The Appeal Panel quoted from Pholi v Wearne [2014] NSWCATAP 78, which explained the meaning of "substantial miscarriage of justice" as follows:

[The appellant] must demonstrate something more than that the Tribunal was arguably wrong. Leave is ordinarily granted only where the matter involves an issue of principle, questions of public importance, where the injustice is reasonably clear or where the Tribunal has gone about its fact finding process in such an unorthodox manner that it is likely to have produced an unfair result.

The Appeal Panel held that there was nothing in the evidence or the treatment of it by the Tribunal below that approached requiring leave to appeal on any basis, let alone on the basis of any substantial miscarriage of justice.

Relevant evidence must be placed before the Tribunal, despite informality

One of the issues before the Tribunal below was whether the builder had obtained home warranty insurance.  An eligibility certificate was in evidence before the Tribunal below, which was endorsed "this certificate of eligibility is not to be used as a certificate of insurance under the Home Building Act 1989 (NSW). Homeowners are not covered as result of this certificate of eligibility and separate certificates of insurance are required in respect of individual building works".

During the appeal hearing, the builder produced a certificate of insurance which he had failed to produce during the first hearing.  The appellant disputed the finding in the Tribunal below that home warranty insurance was not in place at the time the work was carried out.   

The Appeal Panel emphasized, even in circumstances where the Tribunal is not bound by the rules of evidence and is to act without formality (section 38 of the NCAT Act), a party should at least identify at the hearing all the evidentiary material on which the party relies. This is particularly so when, as was the case here, the appellant had legal representation. The certificate of insurance should have been produced or referred to at some stage during the first hearing.  It was found, in any event, that the certificate of insurance did not achieve sufficient compliance with the Home Building Act and this ground of appeal was dismissed.

In the media and practice

Gundagai residents to save time with online Electronic Housing Code
Building a new house or doing a simple renovation will be easier in the Gundagai area thanks to a Department of Planning and Environment program that allows homeowners and businesses to lodge applications any time from any location (01 October 2015). More...

NSW: EP&A Reg amendments start today: fire safety reports
Changes to the Environmental Planning and Assessment Regulation 2000 commence today and relate to fire safety reports (02 October 2015).   More...

NSW BPB September 2015 e-news
A monthly digest of work by the Board, legislative updates, events, training and consultation opportunities (30 September 2015).   More...

NSW: Swimming pools require a separate child-resistant barrier: advice about AS 1926.1
The NSW Swimming Pools Act 1992 (Act) has always required swimming pools to be surrounded by a child-resistant barrier at all times (30 September 2015).   More...


Ian Cubitts Classic Home Improvements Pty Ltd v Granny Flat Projects [2015] FCCA 2630
COPYRIGHT – Infringement of copyright – whether an order for compensatory damages under s.115(2) of the Copyright Act 1968 (Cth) should be made – whether an order for additional damages should be made pursuant to s.115(4) of the Copyright Act 1968 (Cth) – whether further orders for injunctive relief and destruction of material should be made.  PRACTICE & PROCEDURE – Whether matter should be disposed of by summary judgment pursuant to r.13.07 of the Federal Circuit Court Rules 2001 (Cth) – failure to comply with orders of the Court – no reasonable prospects of successfully defending claim.   More...

Nash Bros Builders Pty Ltd v Riverina Water County Council (No 2) [2015] NSWLEC 156
JUDICIAL REVIEW: Whether water authority has power to levy development servicing charge for the provision of water supply to a retirement village – whether the certificate of compliance required by applicants – whether if charges unlawfully levied the applicants can recover the amounts paid to the water authority – application dismissed with costs.   More...

John Emmery (Appellant); Lionel Smith (Respondent) [2015] NSWCATAP 212
Home building – deficiencies in licence and insurance – appeal – no question of law – application for leave to appeal – no miscarriage of justice – no error in relation to costs order – no award of costs in respect of appeal.   More...

Mohammed & Sheikh v Ausko Building and Construction Pty Ltd & Augustus & Ravikumar & Roshan & Stanley [2015] NSWCATCD 107 
Successor in title – warranties under the Home Building Act – where the work is defective and if so, reasonable cost of rectification.  More...

Wagg v Farthing [2015] NSWCATAP 217
Appeal, Error of Law, Substantial Miscarriage of Justice, Against Weight of Evidence, Cost Plus Contract, Termination of Contract, Expert Evidence, Guillotine Order.More...

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Christine Jones
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