Bowman v Curtis - [2022] NSWCATCD 125

Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: Bowman v Curtis [2022] NSWCATCD 125
Hearing dates: 19 May 2022
Date of orders: 3 August 2022
Decision date: 03 August 2022
Jurisdiction: Consumer and Commercial Division
Before: D Moujalli, Senior Member
Decision:
The respondent must pay the applicant the sum of $26,490.89 within 21 days of the date of this order.

Catchwords:
BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) - defects in building work - whether a work or a money order should be made in respect of defects

Legislation Cited:
Home Building Act 1989 (NSW)

Cases Cited:
Kurmond Homes Pty Ltd v Marsden [2018] NSWCATAP 23
Morrison v Moss [2019] NSWDC 746
Wheeler and Anor v Ecroplot Pty Ltd [2010] NSWCA 61

Category: Principal judgment
Parties: Annette Bowman (Applicant)
Jai Curtis t/as Curtis Carpentry & Construction (Respondent)
Representation: Applicant: self-represented
Respondent: self-represented

File Number(s): HB 22/10751
Publication restriction: Nil

REASONS FOR DECISION

Introduction

On 8 March 2022 the applicant, Annette Bowman, lodged an application with the Tribunal (the Application). The Application seeks an order for payment of money against the respondent in respect of defects in building works carried out by the respondent on the applicant’s residential premises.
The hearing was conducted on 19 May 2022.
At the hearing on 19 May 2022, each party was self-represented. The hearing proceeded by AVL.
At the hearing each party was given an opportunity to present their evidence, ask questions of the other party and make submissions. Both Ms Bowman and Mr Curtis did this in a respectful manner and the Tribunal is grateful for their co-operation in this respect.

Evidence

In determining the Application, the Tribunal has had regard to the following:

The material filed by the applicant on 12 April 2022. This was marked Ex A1 at the hearing on 19 May 2022.

The further material filed by the applicant on 11 May 2022. This was marked Ex A2 at the hearing on 19 May 2022.

The material filed by the respondent on 4 May 2022. This was marked Ex R1 at the hearing on 19 May 2022.

An expert’s report of Stephen Webster dated 18 May 2022 relied upon by the respondent. This was marked Ex R2 at the hearing on 19 May 2022.

The findings made by the Tribunal on the basis of the above evidence is set out below.

Jurisdiction

Section 48K (1) of the Home Building Act 1989 (NSW) (HBA) provides that the Tribunal has jurisdiction to hear and determine a building claim.
The Tribunal’s jurisdiction to determine a building claim is subject to whether certain time limits for the making of the claim are complied with.
Section 48K (7) of the HBA provides that the Tribunal does not have jurisdiction to determine any building claim for a breach of a statutory warranty if the claim is made after the period provided by section 18E for commencing such a proceeding.
The provisions of the section 18E (1) (a)…

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.

Continue reading Bowman v Curtis

Details

AGLC: Bowman v Curtis [2022] NSWCATCD 125
Case: [2022] NSWCATCD 125
Decision Date: 03 August 2022

CaseChat Overview and Summary

Bowman, the applicant, brought proceedings against Curtis, the respondent, in the Consumer, Trader and Tenancy Tribunal (CTTT) alleging that Curtis had failed to comply with an order issued by the CTTT in a prior dispute between the parties. The issue before the tribunal was whether the court should make a work or a money order in respect of the defects identified in the building work. The dispute originated from a prior proceeding where the CTTT found that Curtis had breached the Home Building Act 1989 (NSW) by failing to complete the building work to the required standard. Curtis was ordered to remedy the defects, which he failed to do. Bowman sought a work order, arguing that Curtis had not taken any steps to remedy the defects. Curtis argued that the defects could not be remedied and that a money order should be made in lieu.

The tribunal found that the defects identified could not be remedied and that a money order was appropriate. The tribunal noted that the Home Building Act 1989 (NSW) allows for a money order to be made in lieu of a work order if the defects cannot be remedied. The tribunal also noted that the amount of the money order should reflect the cost of remedying the defects. The tribunal ordered Curtis to pay Bowman the sum of $26,490.89 within 21 days of the date of the order.

Orders

Orders of the court

The respondent must pay the applicant the sum of $26,490.89 within 21 days of the date of this order.

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:	Bowman v Curtis [2022] NSWCATCD 125
Hearing dates:	19 May 2022
Date of orders:	3 August 2022
Decision date:	03 August 2022
Jurisdiction:	Consumer and Commercial Division
Before:	D Moujalli, Senior Member
Decision:	The respondent must pay the applicant the sum of $26,490.89 within 21 days of the date of this order.
Catchwords:	BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) - defects in building work - whether a work or a money order should be made in respect of defects
Legislation Cited:	Home Building Act 1989 (NSW)
Cases Cited:	Kurmond Homes Pty Ltd v Marsden [2018] NSWCATAP 23 Morrison v Moss [2019] NSWDC 746 Wheeler and Anor v Ecroplot Pty Ltd [2010] NSWCA 61
Category:	Principal judgment
Parties:	Annette Bowman (Applicant) Jai Curtis t/as Curtis Carpentry & Construction (Respondent)
Representation:	Applicant: self-represented Respondent: self-represented
File Number(s):	HB 22/10751
Publication restriction:	Nil