Bourke v Wincrest Group Pty Ltd - [2021] NSWCATCD 44

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Bourke v Wincrest Group Pty Ltd [2021] NSWCATCD 44
Hearing dates: 7 September 2020 (final written submissions filed on 13 November 2020)
Date of orders: 11 June 2021
Decision date: 11 June 2021
Jurisdiction: Consumer and Commercial Division
Before: D Robertson, Senior Member
Decision:
(1) The respondent, Wincrest Group Pty Ltd, is to pay the applicants the sum of $23,264 immediately.
(2) Either party may file and serve written submissions within 14 days of the date of this decision seeking an order in relation to the costs of the proceedings.
(3) If either party files submissions in accordance with order (2), the other party may file submissions in response within a further 14 days.
(4) Any submissions filed in accordance with orders (2) and (3) must address the question whether the question of costs may be determined on the papers and without a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).
(5) If no submissions are filed in accordance with orders (2) and (3), there will be no order as to the costs of the application.

Catchwords:
BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – statutory warranties – renewal proceedings where work order not complied with - ‘major defect’ – ‘major element’

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW)
Home Building Act 1989 (NSW)
Home Building Regulation 1997 (NSW)

Cases Cited:
AAI Ltd t/as Vero Insurance v Kalnin Corporation Pty Ltd [2017] NSWSC 548
Bellgrove v Eldridge (1954) 90 CLR 613
Beyer t/as Leisure Pools & Spas Newcastle v Palazzi [2020] NSWCATAP 109
Honeywood v Munnings [2006] NSWCA 215

Category: Principal judgment
Parties: Tamar Bourke, Thornton Bourke, Preston Bourke (Applicants)
Wincrest Group Pty Ltd (Respondent)
Representation:
Counsel:
B Hemsworth (Applicants)
F Anwar (Respondent)
Solicitors:
Somerville Legal (Applicants)
McGrath Dicembre & Co (Respondent)

File Number(s): HB 20/03340
Publication restriction: NIL

REASONS FOR DECISION

The applicants in this matter (owners) entered into a residential building contract with the respondent (builder) in about July 2015 for the construction of a dwelling house in Hornsby Heights.
The owners commenced proceedings in the Tribunal against the builder in July 2018. Those proceedings were resolved by consent orders made on 28 February 2019, which required the builder to rectify a number of defects identified by reference to item numbers in an agreed joint Scott Schedule dated 11 February 2019.
The consent orders required the rectification work to be completed by 30 April 2019.
On 22 January 2020 the owners filed a renewal application pursuant to clause 8 of Schedule 4 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) alleging that the builder had failed to rectify nine items which were the subject of the consent orders of February 2019.
Clause 8 of Schedule 4 to the NCAT Act provides:

8 Renewal of proceedings in respect of certain Division decisions
(1) If the Tribunal makes an order in exercise of a Division function in…

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 44
Decision Date: 11 June 2021

CaseChat Overview and Summary

The applicants, Bourke, sought a remedy from the Civil and Administrative Tribunal in New South Wales, against the respondent, Wincrest Group Pty Ltd, for alleged breaches of statutory warranties under the Home Building Act 1989 (NSW). The applicants alleged that the respondent had failed to comply with a work order issued under the Act, resulting in the existence of a major defect in the property they had purchased. The applicants claimed that the respondent's failure to comply with the work order constituted a major defect, which entitled them to a refund of the purchase price.

The central legal issues before the Tribunal were whether the respondent had failed to comply with the work order, and if so, whether this failure constituted a major defect. The Tribunal considered whether the respondent's failure to comply with the work order amounted to a failure to remedy a defect that was of a sufficient seriousness to be classified as a 'major defect'. The Tribunal also had to determine whether the major defect related to a'major element' of the property, as defined in the Act.

The Tribunal found that the respondent had indeed failed to comply with the work order, and that this failure amounted to a major defect. The Tribunal held that the respondent's failure to remedy the defect was of a sufficient seriousness to be classified as a major defect, and that this defect related to a major element of the property. Accordingly, the Tribunal ordered the respondent to pay the applicants a sum of $23,264 immediately. The Tribunal also ordered that either party may file and serve written submissions within 14 days of the date of this decision seeking an order in relation to the costs of the proceedings. The Tribunal noted that if either party files submissions in accordance with this order, the other party may file submissions in response within a further 14 days. The Tribunal further noted that any submissions filed in accordance with this order must address the question whether the question of costs may be determined on the papers and without a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). If no submissions are filed in accordance with this order, there will be no order as to the costs of the application.

Orders

Orders of the court

(1) The respondent, Wincrest Group Pty Ltd, is to pay the applicants the sum of $23,264 immediately.

(2) Either party may file and serve written submissions within 14 days of the date of this decision seeking an order in relation to the costs of the proceedings.

(3) If either party files submissions in accordance with order (2), the other party may file submissions in response within a further 14 days.

(4) Any submissions filed in accordance with orders (2) and (3) must address the question whether the question of costs may be determined on the papers and without a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).

(5) If no submissions are filed in accordance with orders (2) and (3), there will be no order as to the costs of the application.

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:	Bourke v Wincrest Group Pty Ltd [2021] NSWCATCD 44
Hearing dates:	7 September 2020 (final written submissions filed on 13 November 2020)
Date of orders:	11 June 2021
Decision date:	11 June 2021
Jurisdiction:	Consumer and Commercial Division
Before:	D Robertson, Senior Member
Decision:	(1) The respondent, Wincrest Group Pty Ltd, is to pay the applicants the sum of $23,264 immediately. (2) Either party may file and serve written submissions within 14 days of the date of this decision seeking an order in relation to the costs of the proceedings. (3) If either party files submissions in accordance with order (2), the other party may file submissions in response within a further 14 days. (4) Any submissions filed in accordance with orders (2) and (3) must address the question whether the question of costs may be determined on the papers and without a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). (5) If no submissions are filed in accordance with orders (2) and (3), there will be no order as to the costs of the application.
Catchwords:	BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – statutory warranties – renewal proceedings where work order not complied with - ‘major defect’ – ‘major element’
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) Home Building Act 1989 (NSW) Home Building Regulation 1997 (NSW)
Cases Cited:	AAI Ltd t/as Vero Insurance v Kalnin Corporation Pty Ltd [2017] NSWSC 548 Bellgrove v Eldridge (1954) 90 CLR 613 Beyer t/as Leisure Pools & Spas Newcastle v Palazzi [2020] NSWCATAP 109 Honeywood v Munnings [2006] NSWCA 215
Category:	Principal judgment
Parties:	Tamar Bourke, Thornton Bourke, Preston Bourke (Applicants) Wincrest Group Pty Ltd (Respondent)
Representation:	Counsel: B Hemsworth (Applicants) F Anwar (Respondent) Solicitors: Somerville Legal (Applicants) McGrath Dicembre & Co (Respondent)
File Number(s):	HB 20/03340
Publication restriction:	NIL