Bourke v Wincrest Group Pty Ltd

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Bourke v Wincrest Group Pty Ltd [2021] NSWCATCD 81

Hearing dates:

On the papers

Date of orders:

17 August 2021

Decision date:

17 August 2021

Jurisdiction:

Consumer and Commercial Division

Before:

D Robertson, Senior Member

Decision:

(1) Pursuant to section 50(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW), a hearing in respect of the costs of the proceedings is dispensed with.

(2) The respondent, Wincrest Group Pty Ltd is to pay 50% of the applicants’ costs of and incidental to the proceedings as agreed or assessed.

Catchwords:

COSTS – No issue of principle

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Civil and Administrative Tribunal Rules 2014 (NSW)

Home Building Act 1989 (NSW)

Cases Cited:

Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304

Bull v Lee (No 2) [2009] NSWCA 362

Cominos v Di Rico (No 2) [2016] NSWCATAP 138

Kursun v Gareffa (No 2) [2017] NSWCATCD 23

Thompson v Chapman [2016] NSWCATAP 6

Texts Cited:

Nil

Category:

Costs

Parties:

Tamar Bourke (First Applicant)
Thornton Bourke (Second Applicant)
Preston Bourke (Applicants)
Wincrest Group Pty Ltd (Respondent)

Representation:

Solicitors:
Somerville Legal (First Applicant, Second Applicant and Third Applicant)
MCD Law (Respondent)

File Number(s):

HB 20/03340

Publication restriction:

Nil

REASONS FOR DECISION

1. The principal decision in this matter (the Decision) was published on 11 June 2021. By the Decision I ordered the respondent (the builder) to pay the applicants the sum of $23,264.

2. The matter before me was a renewal application brought by the applicants on 22 January 2020 pursuant to clause 8 of schedule 4 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).

3. The applicants alleged that the builder had failed to rectify nine items which were the subject of consent orders made on 28 February 2019.

4. By the Decision I found that some, but not all, of the items claimed by the applicants to have been defective required rectification, and assessed the reasonable cost of rectification, which was the amount the builder was ordered to pay.

5. The applicants had also sought to raise an additional item, not the subject of the previous orders, which was that the concrete slab supporting a rainwater tank was also defective. I determined that any defect in the slab was not a major defect and that the Tribunal did not have jurisdiction to determine any claim relating to the slab as the warranty period in respect of that work had expired.

6. I made orders permitting either party to file submissions seeking an order for costs and for the other party to file submissions in response and required that any such submissions indicate whether the issue of costs could be dealt with on the papers and without a further hearing.

7. The applicants filed submissions on 25 June 2021 seeking an order “that the builder pay the owners’ costs of, or incidental to, the proceedings as well as the costs of, or incidental to, the circumstances giving rise…