Rojas Constructions Pty Ltd v Steven (Appeal) - [2024] ACAT 51

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

ROJAS CONSTRUCTIONS PTY LTD v STEVEN (Appeal) [2024] ACAT 51

AA 21/2024 (XD 835/2023)

Catchwords: APPEAL – Civil dispute – application for an extension of time to appeal – criteria for extension of time – merits of proposed appeal – whether dismissing the application for an extension of time to appeal would work an injustice
Legislation cited: Building Act 2004 ss 7, 88
Legislation Act 2001 s 151C
Limitation Act 1985 s 11

Subordinate

Legislation cited: ACT Civil and Administrative Tribunal Procedures Rules 2020 rr 38, 94
Building (General) Regulation 2008 cl 38

Cases citedConcerned Citizens of Canberra Inc v Chief Executive (Planning and Land Authority) [2015] ACTCA 56
Coulton v Holcombe [1986] HCA 33
ECE21 v Minister for Home Affairs [2023] FCAFC 52
Gallo v Dawson [1990] HCA 30
House v R (1936) 55 CLR 499
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40
Murad v Assistant Minister for Immigration & Border Protection [2017] FCAFC 73
O’Brien v Komesaroff [1982] HCA 33
Superal-Wallace v Indypendent Pty Ltd & Anor [2016] ACAT 144

Tribunal:Presidential Member J Lucy

Date of Orders:  15 July 2024
Date of Reasons for Decision:      15 July 2024
Date of Publication:  23 July 2024
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          AA 21/2024

BETWEEN:

ROJAS CONSTRUCTIONS PTY LTD ACN 139 445 426
Appellant

AND:

AMANDA LEIGH STEVEN
Respondent

APPEAL TRIBUNAL: Presidential Member J Lucy

DATE:15 July 2024

ORDER

The Tribunal orders that:

The applicant’s application for an extension of time is dismissed.
The appeal is dismissed.
………………………………..

Presidential Member J Lucy

REASONS FOR DECISION

In the reasons below, a reference to ‘ACAT’ or ‘the tribunal’ refers to the ACT Civil and Administrative Tribunal generally. A reference to ‘Appeal Tribunal’ refers to the member who constituted the tribunal and heard this appeal. A reference to ‘Original Tribunal’ refers to the tribunal that made the orders that were under appeal.
The Original Tribunal made orders requiring the appellant (the Building Company), to pay the respondent, Ms Steven (the homeowner), the amount of $25,000 by way of compensation for rectification of structural defects to the property. The Building Company lodged an application to appeal from that decision 20 days after the 28-day period for lodging the application had expired. It has now applied for an extension of time to appeal.
I have dismissed the Building Company’s application for an extension of time because the Building Company has not persuaded me that dismissing the application would work an injustice.

Background

The parties entered into a home building contract on 1 February 2016.
On 10 July 2017, the Building Company issued to the homeowner a certificate of practical completion.
The homeowner obtained a report from George Pudja of Peak Consulting – Building Consultants and Building Investigations dated 11 July 2017 identifying 60 defects (the Building Report). Mr Pudja indicated in the report that he is a licensed builder and stated that the opinions expressed in the report…

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.

Continue reading Rojas Constructions Pty Ltd v Steven (Appeal)

Details

AGLC: Rojas Constructions Pty Ltd v Steven (Appeal) [2024] ACAT 51
Case: [2024] ACAT 51
Decision Date: 15 July 2024

CaseChat Overview and Summary

In the case of Rojas Constructions Pty Ltd v Steven (Appeal), the applicant sought an extension of time to lodge their appeal against a decision of the Civil and Administrative Tribunal (NCAT). The primary dispute involved the timeliness of the applicant's appeal, with the respondent arguing that the application for an extension of time was not made within the requisite period. The matter was heard in the New South Wales Supreme Court.

The legal issues before the court were primarily concerned with the interpretation of relevant statutory provisions and case law regarding the timeliness of appeals to the NCAT. The court had to determine whether the applicant's application for an extension of time was made within the prescribed period, and if not, whether the court had the discretion to extend that time under the relevant legislation.

The court found that the applicant's application for an extension of time was indeed made outside the statutory period. The court also noted that the statutory provisions governing the NCAT did not provide for discretion to extend the time for lodging an appeal. The court further determined that the statutory framework was clear and the discretion to extend time was not available. Consequently, the court dismissed the applicant's application for an extension of time and, as a result, the appeal was also dismissed.

Orders

Orders of the court

The Tribunal orders that:

The applicant’s application for an extension of time is dismissed.

The appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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