Atkinson v Crowley

The proceedings concerned an appeal from a decision of Smart AJ in the Common Law Division of the Supreme Court of New South Wales. The applicant, Clifford Atkinson, sought to appeal a judgment concerning claims arising under the *Home Building Act 1989* (NSW) and in tort. The respondents were Cameron Crowley and Eleanor Crowley.

The primary legal issues before the Court of Appeal were whether a claim for breach of statutory warranty under the *Home Building Act 1989* was available against a co-owner spouse of the holder of an owner-builder permit, and whether such a claim was available in tort. Further, the Court considered whether the Tribunal had jurisdiction to determine the claim, and whether an order for substituted service, made at the husband's business address, was effective against both the husband and wife, and if such an order resulted in procedural unfairness.

The Court of Appeal determined that the claim under the *Home Building Act 1989* was not available against the co-owner spouse. The Court also found that the order for substituted service was not effective against the wife, Eleanor Crowley, as it did not provide her with a sufficient opportunity to resist the proceedings in the Tribunal, thereby resulting in a denial of procedural fairness. Consequently, the judgment against Eleanor Crowley was set aside. The Court also addressed an application for leave to appeal by Clifford Atkinson and a cross-appeal by Lisa Anne Atkinson, refusing leave for the former and dismissing the latter.