Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Brooks v Gannon Constructions Pty Limited [2017] NSWCATCD 12 Hearing dates: 19, 20, 21 September 2016(Final submissions received 4 November 2016) Decision date: 02 March 2017 Jurisdiction: Consumer and Commercial Division Before: T Simon, Senior Member Decision: 1 The respondent is to pay the applicant the sum of $105,836.57 immediately.
2 In the event that either party intends to make further submissions in relation to costs, the applicant is to provide any documents and submissions to the respondent and the Tribunal, either in person or by post by 15 March 2017.
3 The respondent is to provide any documents and submissions in relation to costs to the applicant and the Tribunal, either in person or by post on 30 March 2017.
4 The issue of costs will be decided on the papers. In the event that the parties wish to be heard in person they must advise the Tribunal on or before 30 March 2017. If no further submissions are received the Tribunal will proceed to make a decision on the papers.Catchwords: Home Building, statutory warranty, defences, s18F, preferred outcome, s 48 MA Legislation Cited: Home Building Act 1989 (NSW)
Home Building Regulation 2014 (NSW)
Home Building Regulation 2004 (NSW)Cases Cited: Bauchet v Mirage Pools Pty Ltd (2001) NSWSC 201
Maiolo v Frank Chiarelli and Anor (2016) NSWCATAP 81
Pham v Broadview Windows Pty Ltd
Pastrovic & Co Pty Ltd v Farrington [2011] NSWDC 94
& Ors [2009] NSWCTTT 375
The Craftsmen Restoration and Renovations v Thomas Boland, Thomas Boland v The Craftsmen Restoration and Renovations [2008]Category: Principal judgment Parties: Christopher Brooks (applicant homeowner)
Gannon Constructions Pty Limited (respondent builder)Representation: Counsel:
Solicitors:
E Chrysostomou - for the applicant
Mills Oakley Lawyers – for the applicant
G Crisp of Crafers Law – for the respondent
File Number(s): HB 15/64567 Publication restriction: Nil
Reasons for the Decision
The Application
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For ease of reference the applicant shall be referred to as the homeowner and the respondent as the builder.
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The initial application was made by the homeowner on 1 December 2015 seeking $289,050.92 for defective works which they alleged amounted to a breach of statutory warranty. That amount was revised as a result of the expert’s joint report and by the time the matter came before the Tribunal for hearing the amount claimed was less than what was initially claimed.
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The respondent by way of defence is claiming set off against the amount claimed for variations amounting to $192,966.40.
Jurisdiction of the Tribunal
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It is not in dispute that the parties contracted in writing on 7 February 2013. The contract names Mr Michael Gannon in his individual capacity as the builder. Mr Gannon is the sole director of the respondent Corporation. The issue was raised at the outset of the hearing and both parties agreed that the contracting parties were always intended to be the applicant and Gannon Constructions Pty Ltd. The licence number noted on the contract and…
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- AGLC
- Brooks v Gannon Constructions Pty Limited [2017] NSWCATCD 12
- Case
- [2017] NSWCATCD 12
- Decision Date
CaseChat Overview and Summary
The legal issues before the Tribunal involved whether the respondent could rely on certain statutory defences available under section 18F of the Act, and whether the Tribunal should exercise its discretion under section 48 of the Magistrates Act 1921 (Qld) to prefer the outcome that would best serve the interests of justice. Additionally, the Tribunal had to determine the amount of compensation, if any, that the respondent should pay to the applicant.
The Tribunal found that the respondent had failed to discharge the onus of proving any available statutory defences and that the applicant's claims were substantiated. In exercising its discretion under section 48, the Tribunal determined that the preferred outcome was to award the applicant the full amount claimed for the rectification of the defects. Consequently, the Tribunal ordered the respondent to pay the applicant $105,836.57 immediately. The Tribunal also set out a schedule for further submissions on costs, directing that any further documents or submissions be exchanged by specific dates and that the issue of costs would be decided on the papers unless the parties requested a hearing.
Orders
Orders of the court
1 The respondent is to pay the applicant the sum of $105,836.57 immediately.
2 In the event that either party intends to make further submissions in relation to costs, the applicant is to provide any documents and submissions to the respondent and the Tribunal, either in person or by post by 15 March 2017.
3 The respondent is to provide any documents and submissions in relation to costs to the applicant and the Tribunal, either in person or by post on 30 March 2017.
4 The issue of costs will be decided on the papers. In the event that the parties wish to be heard in person they must advise the Tribunal on or before 30 March 2017. If no further submissions are received the Tribunal will proceed to make a decision on the papers.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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