Addbuild Master Builders Pty Ltd v Stern - [2021] NSWCATCD 83

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Addbuild Master Builders Pty Ltd v Stern [2021] NSWCATCD 83
Hearing dates: 17 and 18 May 2021
Date of orders: 17 August 2021
Decision date: 13 August 2021
Jurisdiction: Consumer and Commercial Division
Before: D Goldstein, Senior Member
Decision:
1 In HB 20/15094 Gary Stern must pay Addbuild Master Builders Pty Ltd $52,584.25 immediately.
2 In HB 20/33635 within 21 days of the date of this decision the parties must file (in hard copy and electronic form) an agreed work order with all necessary conditions including the period of time within which the work is to be undertaken, and any final payment to be made to the builder.
3 In the event that the parties are unable to agree the work order, they must each within 21 days of the date of this decision file (in hard copy and electronic form) the form of work order for which they contend with all necessary conditions including the period of time within which the work is to be undertaken, and any final payment to be made to the builder.
4 In the event that a party wishes to bring a costs application, the costs application must be lodged in the Tribunal and served on the costs respondent within 14 days of the date of the orders in these proceedings either attaching or referring to the documents relied upon in support of the application.
5 The costs respondent will have 14 days after the date it or he receives the application to lodge in the Tribunal and serve on the costs applicant his or its submissions, if any, in response to the costs application, such submissions either attaching or referring to the documents relied upon.
6 The cost applicant will have 14 days after the date he or it receives the cost respondent’s submissions to lodge in the Tribunal and serve on the costs respondent its or his submissions, if any, in reply, such submissions either attaching or referring to the documents relied upon.
7 The parties must state in their submissions whether or not they consent to the costs application being determined on the basis of the parties written submissions and attached documents, if any, without the need for a hearing.
8 Subject to the parties’ submissions, the Tribunal will determine any costs application on the basis of the papers lodged in the Tribunal.

Catchwords:
BUILDING AND CONSTRUCTION — Proper construction of payment provisions in clauses 12 and 14 of New South Wales Fair Trading residential building contract — Damages — Mitigation — Work order — Section 48MA of the Home Building Act 1989 (NSW)

Legislation Cited:
Home Building Act 1989 (NSW)

Cases Cited:
Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; (1973) 129 CLR 99
Bellgrove v Eldridge (1954) 90 C.L.R. 613
Gilbert-Ash (Northern) Ltd v Modern Engineering (Bristol) Ltd [1974] AC 689
Hadley v Baxendale (1854) 9 Exch 341
Mount Bruce Mining Pty Limited v…

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.

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Details

Case: [2021] NSWCATCD 83
Decision Date: 13 August 2021

CaseChat Overview and Summary

Addbuild Master Builders Pty Ltd sought payment from Gary Stern, who had engaged them to construct a residential building. Stern refused to pay, asserting that there were defects in the work, and that Addbuild had failed to mitigate its losses. The dispute was heard by the New South Wales Civil and Administrative Tribunal, which was required to interpret the payment provisions in clauses 12 and 14 of the New South Wales Fair Trading residential building contract, and assess the issue of damages and mitigation. The Tribunal also had to consider the impact of section 48MA of the Home Building Act 1989 (NSW) on the matter.

The Tribunal examined the contractual provisions and found that Addbuild was entitled to payment for the work completed, less any deductions that were reasonable and proportionate to the defects. The Tribunal held that Stern had failed to provide a work order as required by the contract, and that Addbuild had taken reasonable steps to mitigate its losses. The Tribunal rejected Stern's argument that Addbuild had failed to mitigate, finding that there was no evidence to support this claim. The Tribunal also found that section 48MA of the Home Building Act 1989 (NSW) did not apply to the dispute.

The Tribunal ordered Stern to pay Addbuild the sum of $52,584.25 immediately. The Tribunal also required the parties to file an agreed work order within 21 days, or if they were unable to agree, to file their respective forms of work order. The Tribunal set out a process for any costs applications that may be brought by either party.

This decision provides guidance on the interpretation of payment provisions in residential building contracts, and the requirements for work orders and mitigation of losses. The decision also highlights the importance of adhering to contractual obligations and the consequences of failing to do so.

Orders

Orders of the court

1 In HB 20/15094 Gary Stern must pay Addbuild Master Builders Pty Ltd $52,584.25 immediately.

2 In HB 20/33635 within 21 days of the date of this decision the parties must file (in hard copy and electronic form) an agreed work order with all necessary conditions including the period of time within which the work is to be undertaken, and any final payment to be made to the builder.

3 In the event that the parties are unable to agree the work order, they must each within 21 days of the date of this decision file (in hard copy and electronic form) the form of work order for which they contend with all necessary conditions including the period of time within which the work is to be undertaken, and any final payment to be made to the builder.

4 In the event that a party wishes to bring a costs application, the costs application must be lodged in the Tribunal and served on the costs respondent within 14 days of the date of the orders in these proceedings either attaching or referring to the documents relied upon in support of the application.

5 The costs respondent will have 14 days after the date it or he receives the application to lodge in the Tribunal and serve on the costs applicant his or its submissions, if any, in response to the costs application, such submissions either attaching or referring to the documents relied upon.

6 The cost applicant will have 14 days after the date he or it receives the cost respondent’s submissions to lodge in the Tribunal and serve on the costs respondent its or his submissions, if any, in reply, such submissions either attaching or referring to the documents relied upon.

7 The parties must state in their submissions whether or not they consent to the costs application being determined on the basis of the parties written submissions and attached documents, if any, without the need for a hearing.

8 Subject to the parties’ submissions, the Tribunal will determine any costs application on the basis of the papers lodged in the Tribunal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Addbuild Master Builders Pty Ltd v Stern [2021] NSWCATCD 83
Hearing dates:	17 and 18 May 2021
Date of orders:	17 August 2021
Decision date:	13 August 2021
Jurisdiction:	Consumer and Commercial Division
Before:	D Goldstein, Senior Member
Decision:	1 In HB 20/15094 Gary Stern must pay Addbuild Master Builders Pty Ltd $52,584.25 immediately. 2 In HB 20/33635 within 21 days of the date of this decision the parties must file (in hard copy and electronic form) an agreed work order with all necessary conditions including the period of time within which the work is to be undertaken, and any final payment to be made to the builder. 3 In the event that the parties are unable to agree the work order, they must each within 21 days of the date of this decision file (in hard copy and electronic form) the form of work order for which they contend with all necessary conditions including the period of time within which the work is to be undertaken, and any final payment to be made to the builder. 4 In the event that a party wishes to bring a costs application, the costs application must be lodged in the Tribunal and served on the costs respondent within 14 days of the date of the orders in these proceedings either attaching or referring to the documents relied upon in support of the application. 5 The costs respondent will have 14 days after the date it or he receives the application to lodge in the Tribunal and serve on the costs applicant his or its submissions, if any, in response to the costs application, such submissions either attaching or referring to the documents relied upon. 6 The cost applicant will have 14 days after the date he or it receives the cost respondent’s submissions to lodge in the Tribunal and serve on the costs respondent its or his submissions, if any, in reply, such submissions either attaching or referring to the documents relied upon. 7 The parties must state in their submissions whether or not they consent to the costs application being determined on the basis of the parties written submissions and attached documents, if any, without the need for a hearing. 8 Subject to the parties’ submissions, the Tribunal will determine any costs application on the basis of the papers lodged in the Tribunal.
Catchwords:	BUILDING AND CONSTRUCTION — Proper construction of payment provisions in clauses 12 and 14 of New South Wales Fair Trading residential building contract — Damages — Mitigation — Work order — Section 48MA of the Home Building Act 1989 (NSW)
Legislation Cited:	Home Building Act 1989 (NSW)
Cases Cited:	Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; (1973) 129 CLR 99 Bellgrove v Eldridge (1954) 90 C.L.R. 613 Gilbert-Ash (Northern) Ltd v Modern Engineering (Bristol) Ltd [1974] AC 689 Hadley v Baxendale (1854) 9 Exch 341 Mount Bruce Mining Pty Limited v…