Australia, March 20 -- New South Wales Land and Environment Court issued text of the following judgement Feb. 20:

1. This is an appeal from a decision of the Consumer and Commercial Division of the Tribunal (Tribunal) published 20 June 2024 (Decision).

2. The Decision considered two applications, namely:

1) application 2023/00382515 (formerly HB 23/35029), which was the application of Ms Francoise Wilson and Mr Matthew Noyce (Homeowners) against the appellant, Ultimo Developments Pty Ltd (Builder). In this matter, the Tribunal ordered the Builder to pay the Homeowners $146,228.53;

2) 2023/00380415 (formerly HB 23/37658), which was the Builder's cross-application against the Homeowners. In this matter, the Tribunal ordered the Homeowners to pay the Builder $68,674.32.

3. In both matters, the Tribunal indicated that it proposed to make costs orders according to the principle that, for matters where more than $30,000 was claimed or in dispute, costs would follow the event. The Tribunal gave both parties to make submissions seeking some other order.

4. The Builder has appealed the Decision.

5. For the following reasons the appeal is dismissed, and orders made to resolve the issue of costs of the appeal.

Notice of Appeal

6. On 19 July 2024, the Builder filed a Notice of Appeal, to which was attached Annexure A, being the Builder's grounds of appeal, which numbered 13 in total. Grounds 1 to 7 related to the reasons for the Decision, grounds 8 to 13 to the costs of the Tribunal proceedings.

7. However, on 1 November 2024, that is three days before the appeal hearing, the Builder's solicitor advised the Registry that the Builder was no longer pressing grounds 3 to 13, and that the Builder wished to be given the opportunity to make short submissions on costs at first instance after the determination of the appeal and the costs of the appeal.

8. Accordingly, the only grounds of appeal agitated by the Builder (as amended at the appeal hearing) were as follows:

1. The Senior Member erred in law in finding at [210] that the floorboards were installed without due care and skill by:

(a) proceeding as if the content of the obligation of due care and skill was determined by the content of an installation guide for the floorboards;

(b) proceeding as if the appellant was obliged to comply with the installation guide for the floorboards; and

(c) failing to have regard to the appellant's submissions on the issue.

2. The Senior Member erred in law, in finding at [209] - [210] that an expert, Mr Fittinghoff, conceded that glue had not been applied and the floorboards had not been affixed in accordance with the manufacturer's instructions/installation guide, in that:

(a) Mr Fittinghoff did not make that concession;

(b) Mr Fittinghoff did not resile from his written opinion about the matter; and

(c) the Senior Member was, accordingly, obliged to have regard to and to address Mr Fittinghoff's written opinion about the matter.

*Rest of the document and Footnotes can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1951c66af0d502ba27d6efc0)

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