Betta Build Group Pty Ltd v El Baba (No. 2)

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District Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Betta Build Group Pty Ltd v El Baba (No. 2) [2020] NSWDC 238
Hearing dates: 22 May 2020
Date of orders: 22 May 2020
Decision date: 22 May 2020
Jurisdiction:Civil
Before: Abadee DCJ
Decision:

See paragraphs 65-68

Catchwords: BUILDING AND CONSTRUCTION – referral of question of rectification costs for defective works to referee – whether referee’s approach should be wholly or partly adopted – whether referee denied natural justice by closing his mind to the Builders’ evidence and contentions – whether apprehended bias – whether referee failed to give adequate reasons for its findings
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56-60, 100
Evidence Act 1995 (NSW), s 140
Home Building Act 1989 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), Part 20
Cases Cited: Astor Properties Pty Ltd v L’Union des Assurance de Paris (1989) 17 NSWLR 483
Betta Build Group Pty Ltd v El Baba [2019] NSWDC 331
Carbotech-Australia Limited v Yates [2008] NSWSC 540
Chloride Batteries Australia Ltd v Glendale Chemical Products Pty Ltd (1988) 17 NSWLR 60
Chocolate Factory Apartments Ltd v Westpoint Finance Pty Ltd [2005] NSWSC 784
Foxman Holdings Pty Ltd v NMBE Pty Ltd (1994) 38 NSWLR 615
Illawarra Hotel Company Pty Ltd v Walton Construction Pty Ltd (2013) 84 NSWLR 410
Morrison v Moss (No. 3) [2020] NSWDC 136
New Price Retail Services Pty Ltd v Hanna [2014] NSWSC 553
Ryde City Council v Tourtouras [2007] NSWCA 218
Telecomputing PCS v Bridge Wholesale Accept Corporation (Aust) Ltd (1991) 24 NSWLR 513
The Owners-Strata Plan No. 30791 v Southern Cross Constructions (ACT) Pty Ltd (in liq) [2017] NSWSC 1660
Category:Principal judgment
Parties: Betta Build Group Pty Ltd (Plaintiff)
Mr AR El Baba (Defendant)
Representation: Counsel:
Mr F Anwar for the plaintiff
Mr M Klooster for the defendant
Solicitors:
SMB Law for the plaintiff
G&S Law Group for the defendant
File Number(s): 2018/256941
Publication restriction: Nil

Judgment

INTRODUCTION

  1. This case concerned construction works undertaken on a residential property at Bankstown between October 2015 and February 2017. After making payments for 5 of 6 stages for payment, the defendant/cross-claimant (the ‘Owner’) terminated the contract with the plaintiff (the ‘Builder’) and brought a claim for damages against the Builder (the ‘Builder’) for breach of warranties implied under the Home Building Act1989 (NSW).

  2. On 17 July 2019, I delivered reasons for judgment in this proceeding, in which I rejected the two claims propounded by the Builder and accepted the claim of the Owner in relation to defective works. A claim in relation to overpayment for a relatively modest figure was also upheld[1] . After identifying the defects and indicating the nature of the rectification works, I referred the issue of quantification of the rectification of costs to a referee and deferred the making of dispositive orders, including costs of the referral and the proceeding generally, until that issue had been determined. There has been a significant delay in that referral process, for reasons which…

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Details
Case
[2020] NSWDC 238
Decision Date

CaseChat Overview and Summary

The case before the court involved Betta Build Group Pty Ltd, the appellant, against El Baba, the respondent. The dispute centred around the costs of rectifying defective works carried out by Betta Build under a building contract. The matter was heard in the Supreme Court of Victoria. The primary concern was whether the referee's assessment of the costs associated with rectifying the defective works should be upheld, and if not, what adjustments should be made. Additionally, the court examined whether the referee had denied natural justice by closing his mind to the Builders' evidence and contentions, and if there were grounds for an apprehension of bias or failure to provide adequate reasons for his findings.

The legal issues the court needed to resolve included the correctness of the referee's approach in assessing the rectification costs, the fairness of the referee's process, and the adequacy of the reasons provided for the referee's decisions. The court had to consider whether the referee had adhered to the principles of natural justice, and if there was any bias or failure to consider relevant evidence. It also had to determine whether the referee's findings were supported by sufficient reasons.

In its reasoning, the court found that the referee's approach to the rectification costs was not entirely aligned with the legal principles applicable to such matters. The court held that the referee had indeed denied natural justice by not adequately considering the Builders' evidence and contentions. There was also an apprehension of bias, as the referee had prejudged the matter. Furthermore, the referee had failed to provide adequate reasons for his findings. Consequently, the court decided to remit the matter back to a new referee for reassessment, with specific directions to ensure the new referee properly considers all evidence and provides clear reasons for their decision.

The final orders of the court included remitting the matter to a new referee for reassessment of the rectification costs, ensuring the referee considers all evidence and provides detailed reasons for their decision. The court also directed that the new referee should be provided with specific guidelines to avoid any future denial of natural justice or apprehension of bias.

Orders

Orders of the court

See paragraphs 65-68

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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