Vulic v Apostolovski trading as Kitchens & Cabinets by Apples [2026] NSWCATAP 25 | Case summary

(1) To the extent leave to appeal is required, leave is refused.

(2) The appeal is dismissed.

Vulic v Apostolovski trading as Kitchens & Cabinets by Apples [2026] NSWCATAP 25 | Case summary | Zoe

Parties

Applicant/Plaintiff:

Vulic

Respondent/Defendant:

Apostolovski trading as Kitchens & Cabinets by Apples [2026] NSWCATAP 25;

Legislation Cited (3)

Administrative Tribunal Act 2013

Administrative Tribunal Rules 2014

Building Act 1989

Cases Cited (3)

In Collins v Urban [2014] NSWCATAP 17 (Collins), the Appeal Panel stated at [76] that a substantial miscarriage of justice for the purposes of cl 12(1) of Schedule 4 may have been suffered where:

In summary, internal appeals may generally be made as of right on a question of law otherwise with leave (that is, the permission) of the Appeal Panel.
In John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 (Prendergast) the Appeal Panel considered what constitutes a question of law and formulated a non-exhaustive list of those matters at [13] including whether the Tribunal identified the wrong issue or asked the wrong question, whether a wrong principle of law had been applied, whether there was a failure to afford procedural fairness, whether there was no evidence to support a finding of fact and whether the decision is so unreasonable that no reasonable decision-maker would make it.
This was recently revisited in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 (Unique) at [25]-[40] esp at [30]-[32], where the Appeal Panel found that Prendergast was "overly reductive" [31] and identified, together with the authorities there cited at [32], further questions of law such as: whether the Tribunal drew inferences that were not available from the facts found; whether the decision was vitiated by bias, or a reasonable apprehension of bias, raising a procedural fairness question, and whether the Tribunal failed to respond to substantial, clearly articulated arguments based on established facts which may constitute a failure to accord natural justice or, alternatively, a constructive failure to exercise jurisdiction.
Where a party is self-represented and that party's material and submissions raise a question of law in substance, a more generous approach is warranted as an aspect of ensuring procedural fairness, even though the ground has not been raised expressly or with precision: Unique at [27]-[28] and Cominos v Di Rico [2016] NSWCATAP 5 at [13]. However, it is important to note that an appeal is not an opportunity for the losing party to rerun the party's case: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10].

In her written submissions, the appellant submitted that the decision was against the weight of evidence because the Tribunal had improperly rejected the Elite Bathrooms report, disregarding the decision in Khan v Kang [2014] NSWCATAP 48 that quotations or reports from other trades can constitute evidence of defects and rectification costs. The appellant further submitted that the Tribunal's reasons did not demonstrate that the Tribunal had evaluated the contents of the report at all, or its source. The Tribunal accepted that the Elite Bathrooms report noted issues of "perceived" defects, yet the Tribunal treated these as irrelevant because the builder was not allowed to complete the building works. Incomplete or defective work is itself compensable under the HBA and to dismiss the claim despite recognising the defects was inconsistent and against the evidence. The Tribunal dismissed the appellant's sworn evidence and documents with no analysis, simply stating that her case did not meet the civil standard of proof. In contrast, the builder's evidence was accepted in full. The appellant submitted that this was not a balanced assessment of conflicting evidence. These submissions are relevant to Grounds 1 and 4.
In Section C of the Notice of Appeal (Orders the Appeal Panel should make), the appellant stated that she sought a refund of the "quantum costs" and the benchtop measure costs, and also orders that the fines against the respondent for breach of the HBA be enforced. We have taken the refund of the quantum costs to be a request for a refund of the deposit paid.
In her oral submissions at the hearing of the appeal, the appellant said that a report provided by her from Paul Newton was not taken into account or even referred to in the decision. The appellant also sought to rely on the evidence she provided about the defects, including photographs of the kitchen and what she referred to as the incomplete and defective work. The appellant provided a transcript of the hearing at first instance but confirmed in her oral submissions that she did not contend there had been a denial of procedural fairness during the hearing or that the conduct of the hearing was unfair. She referred to the fact that the respondent was not licensed for some of the work contracted, namely, electrical and plumbing work. However, she agreed that she did not discover this until she made her complaint to the Building Commission and did not terminate the agreement on this ground. She failed to make the additional payment on delivery of the kitchen because of concerns about the defective works.

Vulic v Apostolovski trading as Kitchens & Cabinets by Apples

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (3 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (3)