Blackhall v Fine Cut Building Pty Ltd - [2021] NSWCATCD 43

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Blackhall v Fine Cut Building Pty Ltd [2021] NSWCATCD 43
Hearing dates: 22 March 2021 (last submissions 30 April 2021)
Date of orders: 22 June 2021
Decision date: 22 June 2021
Jurisdiction: Consumer and Commercial Division
Before: G Ellis SC, Senior Member
Decision:
1.   The respondent is to pay the first applicant $100,035.24 immediately.
2.   Any application for costs is to be made by written submissions which are provided to the Tribunal and the other parties on or before 06 July 2021.
3.   Any response is to be made by written submissions which are to be provided to the Tribunal and the other parties on or before 20 July 2021.
4.   Any such submissions should address the question of whether an order should be made to dispense with a hearing on the question of costs.

Catchwords:
BUILDING AND CONSTRUCTION - Home Building Act 1989 (NSW) - ss 18B, 18F, 48MA - Statutory warranty - Defective work – Statutory defence -Whether failure to comply with specified purpose - Mitigation of damage - Work order or money order

Legislation Cited:
Environment Planning and Assessment Act 1979 (NSW)
Fair Trading Act 1987 (NSW)
Home Building Act 1989 (NSW)
Home Building Regulation 2014 (NSW)

Cases Cited:
Aceti v Woods [2014] NSWCATCD 214
Bellgrove v Eldridge [1954] HCA 36
Brennan Constructions Pty Ltd v Davison [2018] NSWCATAP 210
Brooks v Gannon Constructions Pty Ltd [2017] NSWCATCD 12
Bruno Pisano v Georgia Dandris [2014] NSWSC 1070
Galdona v Peacock [2017] NSWCATAP 64
Gallagher v Masters Installation Pty Ltd [2017] NSWCATAP 117
Haines v Bendall [1991] HCA 15
Henderson v LED Builders Pty Ltd [2005] NSWCTTT 266
J Evers Pty Ltd t/as The Plumbing and Electrical Doctor v Rolt [2018] NSWCATAP150
Karacominakis v Big Country Developments Pty Ltd [2000] NSWCA 313
Kell & Rigby Holdings Pty Ltd [2010] NSWSC 612
Kurmond Homes Pty Ltd v Marsden [2018] NSWCATAP 23
Legione v Hateley [1983] HCA11
Leung v Alexakis [2008] NSWCATAP 11
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305
Mitchell v Cullingral Pty Ltd [2012] NSWCA 389
National Strategic Constructions Pty Ltd v Deacon [2017] NSWCATAP 185
Nationwide Builders Pty Ltd v Le Roy [2019] NSWCATAP 220
Owners Corporation SP49822 v Easyway One Pty Ltd [2009] NSWCTTT 478
Pacorp Holdings Pty Ltd v Waller [2017] NSWCATAP 167
The Craftsman Restoration and Renovations v Boland [2008] NSWSC 660
The Owners – Strata Plan No 76674 v Di Blasio Constructions Pty Ltd [2014] NSWSC 1067
The Owners Strata Plan No 66375 v Suncorp Metway Insurance (No 2) [2017] NSWSC 739
Urban Constructions (NSW) Pty Ltd v Brett Shearer and Bronwyn Shearer [2015] NSWCATCD 9
Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7
Wheeler v Ecroplot Pty Ltd [2010] NSWCA 61

Category: Principal judgment
Parties: Debra Anne Blackhall (First Applicant)
Peter Allan Dean (Second Applicant)
Fine Cut Building Pty Ltd (Respondent)
Representation:
Counsel:
Mr M Klooster (First Applicant)
Mr D O’Connor (Respondent)

Solicitors:
Mr M Atkinson (First Applicant)
Mr…

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 43
Decision Date: 22 June 2021

CaseChat Overview and Summary

The applicant, Blackhall, sought relief under the Home Building Act 1989 (NSW) from the respondent, Fine Cut Building Pty Ltd, due to alleged defective work in the construction of a home. The dispute came before the New South Wales Civil and Administrative Tribunal, which was tasked with determining whether the statutory warranty provided by the respondent was breached, and if so, the appropriate remedy.

The central legal issues before the Tribunal were whether the respondent had failed to comply with the specified purpose of the building work, whether the respondent had a statutory defence to any claim for defective work, and whether the applicant had mitigated their loss. Additionally, the Tribunal had to decide whether the appropriate remedy was a work order or a money order.

In its decision, the Tribunal found that the respondent had indeed failed to comply with the specified purpose of the building work and that the statutory defence was not applicable. The Tribunal also determined that the applicant had taken reasonable steps to mitigate their loss. Consequently, the Tribunal ruled that the appropriate remedy was a money order rather than a work order. The Tribunal ordered the respondent to pay the applicant $100,035.24 immediately. Furthermore, the Tribunal outlined the procedure for any future applications regarding costs, stipulating that written submissions must be provided to the Tribunal and the other parties by specific dates, and that the submissions should address whether a hearing on the question of costs should be dispensed with.

Orders

Orders of the court

1. The respondent is to pay the first applicant $100,035.24 immediately.

2. Any application for costs is to be made by written submissions which are provided to the Tribunal and the other parties on or before 06 July 2021.

3. Any response is to be made by written submissions which are to be provided to the Tribunal and the other parties on or before 20 July 2021.

4. Any such submissions should address the question of whether an order should be made to dispense with a hearing on the question of costs.

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:	Blackhall v Fine Cut Building Pty Ltd [2021] NSWCATCD 43
Hearing dates:	22 March 2021 (last submissions 30 April 2021)
Date of orders:	22 June 2021
Decision date:	22 June 2021
Jurisdiction:	Consumer and Commercial Division
Before:	G Ellis SC, Senior Member
Decision:	1. The respondent is to pay the first applicant $100,035.24 immediately. 2. Any application for costs is to be made by written submissions which are provided to the Tribunal and the other parties on or before 06 July 2021. 3. Any response is to be made by written submissions which are to be provided to the Tribunal and the other parties on or before 20 July 2021. 4. Any such submissions should address the question of whether an order should be made to dispense with a hearing on the question of costs.
Catchwords:	BUILDING AND CONSTRUCTION - Home Building Act 1989 (NSW) - ss 18B, 18F, 48MA - Statutory warranty - Defective work – Statutory defence -Whether failure to comply with specified purpose - Mitigation of damage - Work order or money order
Legislation Cited:	Environment Planning and Assessment Act 1979 (NSW) Fair Trading Act 1987 (NSW) Home Building Act 1989 (NSW) Home Building Regulation 2014 (NSW)
Cases Cited:	Aceti v Woods [2014] NSWCATCD 214 Bellgrove v Eldridge [1954] HCA 36 Brennan Constructions Pty Ltd v Davison [2018] NSWCATAP 210 Brooks v Gannon Constructions Pty Ltd [2017] NSWCATCD 12 Bruno Pisano v Georgia Dandris [2014] NSWSC 1070 Galdona v Peacock [2017] NSWCATAP 64 Gallagher v Masters Installation Pty Ltd [2017] NSWCATAP 117 Haines v Bendall [1991] HCA 15 Henderson v LED Builders Pty Ltd [2005] NSWCTTT 266 J Evers Pty Ltd t/as The Plumbing and Electrical Doctor v Rolt [2018] NSWCATAP150 Karacominakis v Big Country Developments Pty Ltd [2000] NSWCA 313 Kell & Rigby Holdings Pty Ltd [2010] NSWSC 612 Kurmond Homes Pty Ltd v Marsden [2018] NSWCATAP 23 Legione v Hateley [1983] HCA11 Leung v Alexakis [2008] NSWCATAP 11 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 National Strategic Constructions Pty Ltd v Deacon [2017] NSWCATAP 185 Nationwide Builders Pty Ltd v Le Roy [2019] NSWCATAP 220 Owners Corporation SP49822 v Easyway One Pty Ltd [2009] NSWCTTT 478 Pacorp Holdings Pty Ltd v Waller [2017] NSWCATAP 167 The Craftsman Restoration and Renovations v Boland [2008] NSWSC 660 The Owners – Strata Plan No 76674 v Di Blasio Constructions Pty Ltd [2014] NSWSC 1067 The Owners Strata Plan No 66375 v Suncorp Metway Insurance (No 2) [2017] NSWSC 739 Urban Constructions (NSW) Pty Ltd v Brett Shearer and Bronwyn Shearer [2015] NSWCATCD 9 Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7 Wheeler v Ecroplot Pty Ltd [2010] NSWCA 61
Category:	Principal judgment
Parties:	Debra Anne Blackhall (First Applicant) Peter Allan Dean (Second Applicant) Fine Cut Building Pty Ltd (Respondent)
Representation:	Counsel: Mr M Klooster (First Applicant) Mr D O’Connor (Respondent) Solicitors: Mr M Atkinson (First Applicant) Mr…