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

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…