Hoare v Taylormade Residential Pty Ltd - [2022] NSWSC 1359

Supreme Court

New South Wales

Medium Neutral Citation: Hoare v Taylormade Residential Pty Ltd [2022] NSWSC 1359
Hearing dates: 19 May 2022
Decision date: 10 October 2022
Jurisdiction: Common Law
Before: Ierace J
Decision:
(1) Leave to appeal is refused.
(2) The plaintiffs to pay the defendant’s costs of the appeal.

Catchwords:
APPEALS – Appeal from NSW Civil and Administrative Tribunal (“NCAT”) to Supreme Court – whether Appeal Panel costs decision should be set aside – where underlying NCAT proceedings resolved by consent orders

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW), ss 60, 63, 83
Civil and Administrative Tribunal Rules 2013 (NSW), r 38
Home Building Act 1989 (NSW)

Cases Cited:
Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25
Collins v Urban [2014] NSWCATAP 17
Corcoran v Far [2019] NSWSC 1284
Ding v Sanli Design & Construction Pty Ltd [2021] NSWCATCD 116
GWH Build Pty Ltd v The Owners - Strata Plan 96788 (No 2) [2022] NSWCATAP 73
House v The King (1936) 55 CLR 499; [1936] HCA 40
Kiama Council v Grant (2006) 143 LGERA 441; [2006] NSWLEC 96
Nichols v NFS Agribusiness Pty Ltd (2018) 97 NSWLR 681; [2018] NSWCA 84
One.Tel Limited v Commissioner of Taxation (2001) 101 FCR 548; [2000] FCA 270
Re Minister for Immigration and Ethnic Affairs; Ex Parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6
Saravinovska v Saravinovski [2020] NSWSC 1232
Taylor Construction Group Pty Ltd v Strata Plan 92888 t/as The Owners Strata Plan 92888 [2021] NSWSC 1315
Taylormade Residential Pty Ltd v Hoare [2021] NSWCATAP 182
The Owners Corporation Strata Plan No 63341 v Malachite Holdings Pty Ltd [2018] NSWCATAP 256

Category: Principal judgment
Parties: Matthew Hoare (First Plaintiff)
Jodie Hoare (Second Plaintiff)
Taylormade Residential Pty Ltd (Defendant)
Representation:
Counsel:
T Bland (First and Second Plaintiffs)
M Heath (Defendant)
Solicitors:
Peter Mitchell Law (First and Second Plaintiffs)
Peninsula Law (Defendant)

File Number(s): 2021/00209617
Decision under appeal

Court or tribunal:

New South Wales Civil and Administrative Tribunal, Appeal Panel

Citation:

[2021] NSWCATAP 182

Date of Decision:

24 June 2021

Before:

Senior Member Molony

File Number(s):

2020/00371124 (AP 20/45143)

Judgment

By a second further amended summons filed in Court on 19 May 2022, the plaintiffs, Matthew and Jodie Hoare, seek leave to appeal a decision of Senior Member Molony (“SM Molony”) sitting as the Appeal Panel of the New South Wales Civil and Administrative Tribunal (“the Appeal Panel”) (“NCAT”) on 24 June 2021: Taylormade Residential Pty Ltd v Hoare [2021] NSWCATAP 182 (“the Appeal Panel decision”). The plaintiffs seek an order that this decision be set aside and, alternatively, that the appeal to the Appeal Panel be dismissed. As well, the plaintiffs seek orders that the defendant pays the plaintiffs’ costs of the earlier proceedings in the Consumer and Commercial Division of NCAT and the proceedings before the Appeal Panel, as well as the costs of these proceedings.

Factual background

The plaintiffs (“the homeowners”) engaged the defendant builder (“the builder”) to construct a residence…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NSWSC 1359
Decision Date: 10 October 2022

CaseChat Overview and Summary

In Hoare v Taylormade Residential, the appeal was brought by the first respondent, Taylormade Residential, against the decision of the Appeal Panel of the Civil and Administrative Tribunal (NCAT). The dispute involved costs incurred during proceedings that had been resolved by consent orders. The case was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the Appeal Panel's decision on costs should be set aside. The respondent argued that the underlying proceedings had been resolved by consent orders, and thus, the costs decision was no longer relevant. The court had to determine whether the Appeal Panel's decision, which was based on the merits of the case, could still stand despite the resolution of the underlying dispute.

The court considered the nature of the Appeal Panel's decision and its relationship with the consent orders. The Appeal Panel's decision was made in the context of the merits of the case, and the consent orders were entered into after the Appeal Panel had made its decision. The court found that the Appeal Panel's decision was final and binding unless there was a jurisdictional error or an error of law. The court concluded that there was no error of law or jurisdictional error in the Appeal Panel's decision, and thus, the decision could not be set aside. The court held that the resolution of the underlying dispute by consent orders did not affect the validity of the Appeal Panel's decision on costs.

As a result of the court's decision, the appeal was dismissed, and the Appeal Panel's decision on costs remained in place. The court did not set aside the decision, and the costs awarded by the Appeal Panel were upheld.

Orders