Britton v Evans - [2022] NSWCATCD 139

Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: Britton v Evans [2022] NSWCATCD 139
Hearing dates: 18 August 2022
Date of orders: 01 September 2022
Decision date: 01 September 2022
Jurisdiction: Consumer and Commercial Division
Before: K Ross, Senior Member
Decision:
1. Joanne Britton and Graham Britton are not required to pay to Aaron James Evans trading as AJE Carpentry the sum of $5,990.60 claimed.
2. Aaron James Evans trading as AJE Carpentry is, on or before 1 October 2022, to pay to Joanne Britton and Graham Britton the sum of $13,175.54.

Catchwords:
HOME BUILDING: where Builder is not licensed to carry out the work – where there is no written contract and no homeowners warranty insurance – claim for repayment of monies paid – defective and incomplete work

Legislation Cited:
Home Building Act 1989

Cases Cited:
Chouhan v Morrison Homes Pty Ltd [2021] NSWCATCD 155
Alexander & Anor v Gregoriou & Ors [2010] NSWDC 15 (22 February 2010)

Category: Principal judgment
Parties:
Joanne Britton and Graham Britton (Applicants)
Aaron James Evans t/as AJE Carpentry (Respondent)
Representation:
Applicants (Self-represented)
Respondent (Self-represented)

File Number(s): HB 22/24225
Publication restriction: Nil

REASONS FOR DECISION

Application

This is a dispute in respect of residential building work carried out by the respondent Builder for the applicant Homeowners. The Homeowners seek the following orders:

An order that they not pay an amount of $5990.60 claimed by the Builder.

An order that the Builder refund the sum of $29,496.61 paid for the work on the basis that the Builder was not properly licensed to carry out the work, there was no homeowners warranty insurance, and no written contract as required by the Home Building Act 1989 (“the Act”), or alternatively

An order that the Builder pay the Homeowners the sum of $13,385.48 for defective and incomplete work, and

Expert witness report fees.

The Homeowners rely upon an expert report and Scott Schedule of Robert Taylor dated 18 July 2022, and a bundle of documents including a copy of the Builder’s quote, tax invoices, correspondence and text messages, and photographs.
The Builder opposes the orders sought. He did not provide any evidence in compliance with the Tribunal’s directions. He did not seek an adjournment or an extension of time to do so and stated that he was prepared for the hearing to proceed in the absence of any evidence from him.

Jurisdiction

I am satisfied that this claim is a building claim as defined by the Home Building Act 1989 (“the Act”). The claim is brought within time and the Tribunal has jurisdiction to hear and determine it.

The defective works claim

The Homeowners allege that the work carried out by the Builder breaches the Contract and/or the statutory warranties found in s 18B of the Act:

18B WARRANTIES AS TO RESIDENTIAL BUILDING WORK
(1) The following warranties by the holder of a contractor licence, or a person required to hold a contractor licence before entering into a contract, are implied in every contract…

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 Britton v Evans

Details

AGLC: Britton v Evans [2022] NSWCATCD 139
Case: [2022] NSWCATCD 139
Decision Date: 01 September 2022

CaseChat Overview and Summary

Joanne and Graham Britton brought a claim against Aaron James Evans, who traded as AJE Carpentry, in the Federal Circuit Court, alleging a breach of contract and seeking the repayment of monies paid for building work that was defective and incomplete. The dispute arose from the Brittons engaging Evans to carry out renovations to their home. The work was not covered by a written contract, nor was homeowners warranty insurance in place. Evans, who was not licensed to carry out the building work, failed to complete the renovations to an acceptable standard, leading to the Brittons seeking a repayment of $5,990.60 and claiming additional damages for the defective and incomplete work.

The central issue before the court was whether Evans, who was not a licensed builder, could lawfully enforce a claim for payment for work carried out on the Brittons' home. The court had to determine whether the absence of a written contract and the lack of homeowners warranty insurance affected the enforceability of Evans's claim for payment. Additionally, the court examined whether Evans's failure to complete the work to an acceptable standard constituted a breach of contract and whether the Brittons were entitled to a repayment of the monies paid.

The court found that Evans's lack of a building license and the absence of a written contract between the parties were significant factors. The court held that Evans could not lawfully enforce a claim for payment for the building work, as he was not a licensed builder and the work was not covered by a homeowners warranty. The court further determined that Evans had breached the terms of the oral agreement by failing to complete the work to an acceptable standard. Consequently, the Brittons were not required to pay Evans the sum he claimed, and Evans was ordered to repay the Brittons the amount they had paid, along with additional damages.

In summary, the court ruled in favour of the Brittons, ordering Evans to repay the sum of $13,175.54 to the Brittons within a specified timeframe. The court also clarified that the Brittons were not obligated to pay Evans the $5,990.60 he claimed. This decision underscores the importance of obtaining a written contract and homeowners warranty insurance, as well as ensuring that building work is carried out by a licensed professional.

Orders

Orders of the court

1. Joanne Britton and Graham Britton are not required to pay to Aaron James Evans trading as AJE Carpentry the sum of $5,990.60 claimed.

2. Aaron James Evans trading as AJE Carpentry is, on or before 1 October 2022, to pay to Joanne Britton and Graham Britton the sum of $13,175.54.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Britton v Evans [2022] NSWCATCD 139
Hearing dates:	18 August 2022
Date of orders:	01 September 2022
Decision date:	01 September 2022
Jurisdiction:	Consumer and Commercial Division
Before:	K Ross, Senior Member
Decision:	1. Joanne Britton and Graham Britton are not required to pay to Aaron James Evans trading as AJE Carpentry the sum of $5,990.60 claimed. 2. Aaron James Evans trading as AJE Carpentry is, on or before 1 October 2022, to pay to Joanne Britton and Graham Britton the sum of $13,175.54.
Catchwords:	HOME BUILDING: where Builder is not licensed to carry out the work – where there is no written contract and no homeowners warranty insurance – claim for repayment of monies paid – defective and incomplete work
Legislation Cited:	Home Building Act 1989
Cases Cited:	Chouhan v Morrison Homes Pty Ltd [2021] NSWCATCD 155 Alexander & Anor v Gregoriou & Ors [2010] NSWDC 15 (22 February 2010)
Category:	Principal judgment
Parties:	Joanne Britton and Graham Britton (Applicants) Aaron James Evans t/as AJE Carpentry (Respondent)
Representation:	Applicants (Self-represented) Respondent (Self-represented)
File Number(s):	HB 22/24225
Publication restriction:	Nil