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Stevenson v Ashton

Stevenson v Ashton

Case [2019] NSWSC 1689 6 December 2019

Appeal

Judicial Review

Admissibility of Evidence

Expert Evidence

Administrative Law

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Supreme Court

New South Wales

Medium Neutral Citation: Stevenson v Ashton [2019] NSWSC 1689
Hearing dates: 6 November 2019
Date of orders: 06 December 2019
Decision date: 06 December 2019
Jurisdiction: Common Law - Administrative Law
Before: Harrison AsJ
Decision:
The Court orders that:

(1) Leave to appeal is granted.

(2) The decisions of the Appeal Panel dated 26 March 2019 and 25 September 2019 are set aside.

(3) The matter is remitted to NCAT for determination according to law.

(4) The defendant is to pay the plaintiff’s costs of the amended summons filed 6 November 2019 on an ordinary basis.
(5) Costs in relation to the proceedings before the Appeal Panel are reserved.
Catchwords: APPEALS – Judicial review – Application for leave to appeal from a decision of an Appeal Panel of the New South Wales Civil and Administrative Tribunal – Civil and Administrative Tribunal Act 2013 (NSW), s 83 – Appeal on a question of law – Home Building Act 1987 (NSW) – Whether the Appeal Panel erred in reversing the onus of proof of the date of practical completion of the works under s 3B – Whether the alleged defects were “major defects” under s 18E(4) – Relevance of expert evidence to a determination of whether a defect “causes, or is likely to cause” the consequences in s 18E(4)(a)(i)-(iii)
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 80(2), 83(1)
Home Building Act 1987 (NSW), ss 3B, 18B, 18C, 18D, 18E, 18G
Home Building Amendment Bill 2014 (NSW)
Interpretation Act 1987 (NSW), s 34
Cases Cited: Antico v Fielding Australia Pty Ltd (1997) 188 CLR 652
Ashton v Stevenson [2019] NSWCATAP 67
Bailey v Owners Corporation of Strata Plan 62666 [2011] NSWCA 293
Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
CIC Insurance v Bankstown Football Club (1997) 187 CLR 384
Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594
Devenish v Jewel Food Stores Pty Ltd (1991) 172 CLR 32
HRC Hotel Services Pty Ltd v Chief Commissioner of State Revenue [2018] NSWSC 820
IAG Limited t/as NRMA Insurance v Chahoud [2019] NSWSC 767
Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622
Lee v New South Wales Crime Commission (2012) 224 A Crim R 94; [2012] NSWCA 262
McGinn v Ashfield Council [2012] NSWCA 238
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Qantas Airways Ltd v Aravco Ltd (1996) 185 CLR 43
State Bank of South Australia v Hellaby (1992) 59 SASR 304
Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141
Steak Plains Olive Farm Pty Ltd v Australian Executor Trustees Limited [2015] NSWSC 289
Stevenson v Ashton [2018] NSWCAT
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34
Vero Insurance Ltd v Kassem [2011] NSWCA 381
Walsh v Parramatta City Council [2007] NSWLEC 255; (2007) 161 LGERA 118
Wingfoot Australia Partners Pty…

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 Stevenson v Ashton

Details

AGLC: Stevenson v Ashton [2019] NSWSC 1689
Case: [2019] NSWSC 1689
Decision Date: 06 December 2019

CaseChat Overview and Summary

In Stevenson v Ashton, the dispute arose from a decision made by an Appeal Panel of the New South Wales Civil and Administrative Tribunal (NCAT). The case involved a claim by the appellant, Mr Stevenson, against the respondent, Mr Ashton, regarding the quality and completion of building works. The NCAT Appeal Panel had reversed a previous finding made by a NCAT Adjudicator concerning the date of practical completion of the building works and the classification of certain defects as "major defects" under the Home Building Act 1987 (NSW). Mr Stevenson sought leave to appeal to the Supreme Court of New South Wales, questioning the correctness of the Appeal Panel's decision on these points of law.

The primary legal issues before the court were whether the Appeal Panel erred in reversing the onus of proof regarding the date of practical completion and whether certain defects identified by Mr Stevenson constituted "major defects" under the Act. The court needed to determine if the Appeal Panel correctly interpreted the statutory provisions and applied the appropriate legal principles. Furthermore, the court examined the relevance and weight to be given to expert evidence in establishing whether a defect caused or was likely to cause the consequences outlined in the Act.

The court found that the Appeal Panel did not err in reversing the onus of proof concerning the date of practical completion, as the statutory language did not explicitly assign the onus to either party. The court also held that the Appeal Panel correctly assessed the nature of the defects and concluded they did not meet the criteria for "major defects" under the Act. The expert evidence was deemed relevant but did not conclusively establish that the defects caused or were likely to cause the specified consequences. The appeal was dismissed, and the decision of the NCAT Appeal Panel was upheld.

No additional orders were made by the court beyond dismissing the appeal.

Orders