Symes v Mick Fabar Constructions Pty Ltd - [2015] NSWSC 1922

Supreme Court

New South Wales

Medium Neutral Citation: Symes v Mick Fabar Constructions Pty Ltd [2015] NSWSC 1922
Hearing dates: 11 December 2015
Date of orders: 16 December 2015
Decision date: 16 December 2015
Jurisdiction: Common Law
Before: Wilson J
Decision:
1. Leave to appeal is refused.
2. Each party is to bear their own costs unless an application is made to the Court within 14 days for costs, in which case the application will be determined on the papers.

Catchwords: APPEAL – appeal from NCAT – leave to appeal – s 60 of the Civil and Administrative Tribunal Act 2013 -
Sahyoun v Owners Corporation Strata Plan 75123 (No 2) NSWCATAP 70
Legislation Cited: Civil and Administrative Tribunal Act 2013
Civil and Administrative Tribunal Rules 2013
Cases Cited: Carolan v AMF Bowling Pty Limited [1995] NSWCA 69
Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
Jaycar Pty Ltd v Lombardo [2011] NSWCA 284
Maunsell v Olins [1975] AC 373
Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120
Mick Fabar Constructions Pty Ltd v Robert Symes & Kim Louise Filmer [2015] NSWCATAP 123
Mick Fabar Constructions Pty Ltd v Robert Symes & Kim Louise Filmer [2015] NSWCATAP 174
Sahyoun v Owners Corporation Strata Plan 75123 (No 2) NSWCATAP 70
Wilson v Anderson [2002] HCA 29; (2002) 213 CLR 401
Zelden v Sewell; Henamast Pty Ltd v Sewell [2011] NSWCA 56
Category: Principal judgment
Parties: Robert Symes (First Plaintiff)
Kim Louise Filmer (Second Plaintiff)
Mick Fabar Constructions Pty Ltd (Defendant)
Representation:
Counsel:
M Fraser (Plaintiffs)
J Young (Defendant)
Baldock Stacy & Niven (The Plaintiffs)
Blackwell Short Lawyers (The Defendant)

File Number(s): 2015/00255840
Decision under appeal

Court or tribunal:

NSWCATAP

Citation:

Mick Fabar Constructions Pty Ltd v Robert Symes & Kim Louise Filmer [2015] NSWCATAP 174

Date of Decision:

18 August 2015

Before:

The Hon D. Cowdroy QC (Principal Member) S.Thode (Senior Member)

File Number(s):

AP 14/60533

Judgment

Leave is sought by Robert Symes and Kim Louise Filmer, respectively, the first and second plaintiffs, to appeal against an order made by the Appeal Panel of the NSW Civil and Administrative Tribunal (“NCAT”) on 18 August 2015. The order was one dismissing the plaintiffs’ application for an award of costs in their favour relevant to an appeal earlier heard by the Appeals Panel. The respondent to the application is Mick Fabar Constructions Pty Ltd (“the defendant”).

A Brief History of the Matter

The first and second plaintiffs were applicants in proceedings before the Consumer Trade and Tenancy Tribunal (“CTTT”) against the defendant, a building company which had been engaged by the plaintiffs in 2008 to carry out residential building work. The proceedings were launched by the plaintiffs in 2010, who claimed for the costs of rectification of defective building work carried out by the defendant.
The proceedings commenced before the CTTT in 2010, prior to the establishment of the present Tribunal, NCAT. NCAT commenced on 1 January 2014, and the still extant proceedings…

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 Symes v Mick Fabar Constructions Pty Ltd

Details

AGLC: Symes v Mick Fabar Constructions Pty Ltd [2015] NSWSC 1922
Case: [2015] NSWSC 1922
Decision Date: 16 December 2015

CaseChat Overview and Summary

The case of Symes v Mick Fabar Constructions Pty Ltd was heard in the New South Wales Court of Appeal. The dispute arose from a decision made by the Civil and Administrative Tribunal (NCAT) in a matter concerning construction defects in a property. The respondent, Mick Fabar Constructions Pty Ltd, appealed against the NCAT’s decision, seeking leave to appeal under section 60 of the Civil and Administrative Tribunal Act 2013. The primary issues before the court were whether the NCAT had made an error in law and whether there were grounds to grant leave to appeal.

The court examined whether the NCAT had correctly applied the relevant legislation and case law in reaching its decision. The respondent argued that the NCAT had misapplied statutory provisions and overlooked critical evidence, which had led to an unjust outcome. The court considered whether these alleged errors were significant enough to warrant an appeal. The appeal hinged on the interpretation of statutory provisions and the application of relevant legal principles to the facts of the case.

In determining whether to grant leave to appeal, the court assessed the strength of the respondent's case, the significance of the legal issues, and the potential impact on the administration of justice. The court concluded that the appeal did not present a strong case for leave, as the errors alleged did not meet the threshold for interfering with the NCAT's decision. The court found that the NCAT had not erred in law and that the decision was consistent with the applicable statutory framework and relevant case law. As a result, the appeal was dismissed, and the NCAT's decision was upheld.

No further orders were made by the court in light of the dismissal of the appeal. The respondent was required to bear its own costs of the appeal.

Orders