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Chuang v New Legend Global Developments Pty Ltd

Chuang v New Legend Global Developments Pty Ltd

Case [2017] NSWCATCD 101 20 November 2017

Civil Litigation & Procedure

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Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Chuang v New Legend Global Developments Pty Ltd [2017] NSWCATCD 101
Hearing dates: 4 October 2017
Date of orders: 20 November 2017
Decision date: 20 November 2017
Jurisdiction: Consumer and Commercial Division
Before: P French, General Member
Decision:
1. The applicant is granted leave to be legally represented at this final hearing of the matter.

2. Pursuant to section 48O(1)(a) of the Home Building Act 1989 the respondent, New Legend Global Developments Pty Ltd, (redacted) is to pay the applicant, Pi-Feng Chuang, (redacted) the sum of $41,994.45 immediately.

3. Pursuant to section 48O(1)(b) of the Home Building Act 1989 the Tribunal orders that $50,000.00 in project management fees payable to the respondent and/or Mr Kuan-Shen Shih under the terms of the home building contract is not due or owing.

4. Pursuant to Rule 38 of the Civil and Administrative Tribunal Rules 2014 the respondent, New Legend Global Developments Pty Ltd, (redacted) is to pay the applicant, Pi-Feng Chuang, (redacted) the sum of $3,080.00 immediately, being the costs of her expert report.
5. Pursuant to Rule 38 of the Civil and Administrative Tribunal Rules 2014 the respondent, New Legend Global Developments Pty Ltd, (redacted) is otherwise to pay the applicant, Pi-Feng Chuang, her costs of the proceeding as agreed or as assessed on the ordinary basis pursuant to the provisions of the Legal Profession Uniform Law Application Act 2014.
Catchwords:
HOME BUILDING – claim by a homebuilder for compensation from a builder for costs of rectifying incomplete and defective home building works; claim by a homebuilder for refund of project management fees paid to a builder in circumstances where the building works were incomplete and defective – claim that the builder engaged in misleading and deceptive conduct – homebuilder’s entitlement to compensation established on the evidence – homebuilder’s entitlement to a refund of project management fees not established on the evidence - homebuilder’s entitlement to relief from payment of project management fee established on the evidence

PRACTICE & PROCEDURE – application for leave to be represented – where the applicant does not speak English – where the quantum of the claim exceeds $80,000.00 – where there is a degree of legal complexity in the proceedings – where leave has been granted to both parties to be represented in the proceedings in the interlocutory stages – leave granted
COSTS – homebuilder’s claim for costs of production of an expert report – homebuilder’s claim for costs of the proceedings on an indemnity basis – principles to be applied – costs awarded on the ordinary basis
Legislation Cited: Australian Consumer Law (NSW): ss 18, 236
Building Code of Australia
Civil and Administrative Tribunal Act 2013: ss 36; 45; 60
Civil and Administrative Tribunal Rules 2014: rr 35; 38
Environmental Planning and Assessment Act 1979: Division 3, Part 4
Fair Trading Act 1989: ss 28; 70; 74
Home Building Act 1989: ss 4; 5; 6; 7; 7A; 7B; 7F; 7AA; 8A; 12; 13; 17; 18;…

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 Chuang v New Legend Global Developments Pty Ltd

Details

AGLC: Chuang v New Legend Global Developments Pty Ltd [2017] NSWCATCD 101
Case: [2017] NSWCATCD 101
Decision Date: 20 November 2017

CaseChat Overview and Summary

Pi-Feng Chuang, a homeowner, filed a claim against New Legend Global Developments Pty Ltd, the builder of her home, seeking compensation for incomplete and defective building works as well as a refund of project management fees. The dispute was heard in the Civil and Administrative Tribunal of New South Wales. The key legal issues the court had to decide were whether the builder had engaged in misleading and deceptive conduct, the homeowner's entitlement to compensation for the costs of rectifying the building works, the entitlement to a refund of the project management fees, and the entitlement to relief from payment of those fees. The court found that the homeowner was entitled to compensation for the incomplete and defective works, but the claim for a refund of the project management fees was not substantiated by the evidence. However, the homeowner was entitled to relief from payment of the project management fees.

The court granted the homeowner leave to be legally represented at the final hearing, considering her lack of fluency in English and the complexity of the legal issues. The court awarded the homeowner compensation for the defective building works and ordered that certain project management fees were not due or owing. Additionally, the court ordered the builder to pay the homeowner the costs of her expert report and her costs of the proceedings on the ordinary basis. The court's decision was based on the evidence presented and the principles of the Home Building Act 1989 and the Civil and Administrative Tribunal Rules 2014.

Orders

Orders of the court

1. The applicant is granted leave to be legally represented at this final hearing of the matter.

2. Pursuant to section 48O(1)(a) of the Home Building Act 1989 the respondent, New Legend Global Developments Pty Ltd, (redacted) is to pay the applicant, Pi-Feng Chuang, (redacted) the sum of $41,994.45 immediately.

3. Pursuant to section 48O(1)(b) of the Home Building Act 1989 the Tribunal orders that $50,000.00 in project management fees payable to the respondent and/or Mr Kuan-Shen Shih under the terms of the home building contract is not due or owing.

4. Pursuant to Rule 38 of the Civil and Administrative Tribunal Rules 2014 the respondent, New Legend Global Developments Pty Ltd, (redacted) is to pay the applicant, Pi-Feng Chuang, (redacted) the sum of $3,080.00 immediately, being the costs of her expert report.

5. Pursuant to Rule 38 of the Civil and Administrative Tribunal Rules 2014 the respondent, New Legend Global Developments Pty Ltd, (redacted) is otherwise to pay the applicant, Pi-Feng Chuang, her costs of the proceeding as agreed or as assessed on the ordinary basis pursuant to the provisions of the Legal Profession Uniform Law Application Act 2014.

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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Citations

AGLC Citation

Chuang v New Legend Global Developments Pty Ltd [2017] NSWCATCD 101

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 13 of 13 shown

Smith v Sydney West Area Health Service (No 2)
[2009] NSWCA 62 Para 72

…n the Tribunal to make an award of costs, but that discretion must be exercised on a principled basis: Smith v Sydney West Area Health Service (No 2) [2009] NSWCA 62 [at 11]. It must be exercised judicially and “according to rules of reason and justice, not according to private opinion … or even benevolence … or s…
Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (No 7)
[2008] NSWSC 199 Para 73

…nquency” bearing a relevant relation to the conduct of the case: Ingot Capital Investment v Macquarie Equity Capital Markets Ltd (No.7) (2008) 65 ACSR 324 [at 24].…
Allplastics Engineering Pty Ltd v Dornoch Ltd
[2006] NSWCA 33 Para 72

…compensate the person in whose favour it is made, not to punish the person against whom the order is made: Allplastics Engineering Pty Ltd [2006] NSWCA 33 [at 34]. The onus lies on the losing party to establish a basis for any departure from the usual rule: Waterman v Gerling Australia Insurance Co Pty Ltd (No.2)…
Waterman v Gerling Australia Insurance Co Pty Ltd (No 2)
[2005] NSWSC 1111 Para 72

…es on the losing party to establish a basis for any departure from the usual rule: Waterman v Gerling Australia Insurance Co Pty Ltd (No.2) [2005] NSWSC 1111 [at 10].…
Mead v Watson
[2005] NSWCA 133 Para 73

…The Tribunal’s power to award indemnity costs is unfettered but it must also be exercised judicially ( Mead v Watson (2005) 23 ACLC 718 [at 8]). Exercise of the discretion must be the subject of careful reasoning ( Degman Pty Ltd (in Liq) v Wright (no.2) [1983] 2 NSWLR 354), and caution should be exercised in making su…
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd
[2004] HCA 52 Para 67

…n, the party signing it is bound, and it is wholly immaterial whether he has read the document or not.” In Toll (FGCT) Pty Limited v Alphapharm 219 CLR 165 the High Court explained [at 40] that contracts are to be construed objectively:…
Leichhardt Municipal Council v Green
[2004] NSWCA 341 Para 73

…Pty Ltd (in Liq) v Wright (no.2) [1983] 2 NSWLR 354), and caution should be exercised in making such an award: Leichhardt Municipal Council v Green [2004] NSWCA 341; Ng v Chong NSWSC 385 at [13]. There is no fixed rule or rationale as to when the discretion might be exercised ( Harrison v Schipp [2001] NSWCA 12 [at…
Oshlack v Richmond River Council
[1998] HCA 11 Para 72

…t.” A successful party has a reasonable expectation of being awarded costs against the unsuccessful party: Oshlack v Richmond River Council (1998) 193 CLR 72 [at 67 and 134]. The purpose of a costs order is to compensate the person in whose favour it is made, not to punish the person against whom the order is made:…
Colgate-Palmolive Co v Cussons Pty ltd
[1993] FCA 801 Para 73

…o when the discretion might be exercised ( Harrison v Schipp [2001] NSWCA 12 [at 139]. However, it requires a “sufficient or unusual feature” ( Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 [at233-234], or some “relevant delinquency”: Oshlack . This does not mean moral delinquency, or some ethical shortcoming, but “delinquency” bear…
Harrison v Schipp
[2001] NSWCA 12 Para 73

…2004] NSWCA 341; Ng v Chong NSWSC 385 at [13]. There is no fixed rule or rationale as to when the discretion might be exercised ( Harrison v Schipp [2001] NSWCA 12 [at 139]. However, it requires a “sufficient or unusual feature” ( Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 [at233-234], or some “relev…
HCA 66Prestige Auto Centre Pty Ltd v Apurva Mishra
[2014] NSWCATAP 81

…ong NSWSC 385 Oshlack v Richmond River Council (1998) 193 CLR 72 Prestige Auto Centre Pty Ltd v Apurva Mishra [2014] NSWCATAP 81 Stedman v Kennedy [2016] NSWCATAP 193 Toll (FGCT) Pty Limited v Alphapharm 219 CLR 165 Waterman v Gerling Australia Insurance Co Pty Ltd (No.2) [2005] NSWSC 1111 Williams v Lewer [1974] 2 N…
Stedman v Kennedy
[2016] NSWCATAP 193 Para 13

…sary for the applicant to establish that there are “special circumstances” warranting the exercise of the discretion: Stedman v Kennedy [2016] NSWCATAP 193.…
[1934] 2 KB 394
[1934] 2 KB 394 Para 67

…dinarily, parties are bound by the terms of the written contracts they sign and those terms are to be construed objectively. In L’Estrange v Gracob [1934] 2 KB 394 [at 403], Scrutton LJ restated the general principle as follows: “[w]hen a document containing contractual terms is signed, then, in the absence of fra…

Legislation cited in this decision · 8

Building and Construction Industry Security of Payments Act 1999 (NSW)
1 mention (from Para 8)
Civil and Administrative Tribunal Act 2013 (NSW)
1 mention (from Para 11)
Civil and Administrative Tribunal Rules 2014 (NSW)
1 mention (from Para 1)
Environmental Planning and Assessment Act 1979 (NSW)
1 mention (from Para 52)
Fair Trading Act 1987 (WA)
1 mention (from Para 44)
Fair Trading Act 1989 (Qld)
1 mention
Home Building Act 1989 (NSW)
1 mention (from Para 1)
Legal Profession Uniform Law Application Act 2014 (Vic)
1 mention

Medium Neutral Citation:	Chuang v New Legend Global Developments Pty Ltd [2017] NSWCATCD 101
Hearing dates:	4 October 2017
Date of orders:	20 November 2017
Decision date:	20 November 2017
Jurisdiction:	Consumer and Commercial Division
Before:	P French, General Member
Decision:	1. The applicant is granted leave to be legally represented at this final hearing of the matter. 2. Pursuant to section 48O(1)(a) of the Home Building Act 1989 the respondent, New Legend Global Developments Pty Ltd, (redacted) is to pay the applicant, Pi-Feng Chuang, (redacted) the sum of $41,994.45 immediately. 3. Pursuant to section 48O(1)(b) of the Home Building Act 1989 the Tribunal orders that $50,000.00 in project management fees payable to the respondent and/or Mr Kuan-Shen Shih under the terms of the home building contract is not due or owing. 4. Pursuant to Rule 38 of the Civil and Administrative Tribunal Rules 2014 the respondent, New Legend Global Developments Pty Ltd, (redacted) is to pay the applicant, Pi-Feng Chuang, (redacted) the sum of $3,080.00 immediately, being the costs of her expert report. 5. Pursuant to Rule 38 of the Civil and Administrative Tribunal Rules 2014 the respondent, New Legend Global Developments Pty Ltd, (redacted) is otherwise to pay the applicant, Pi-Feng Chuang, her costs of the proceeding as agreed or as assessed on the ordinary basis pursuant to the provisions of the Legal Profession Uniform Law Application Act 2014.
Catchwords:	HOME BUILDING – claim by a homebuilder for compensation from a builder for costs of rectifying incomplete and defective home building works; claim by a homebuilder for refund of project management fees paid to a builder in circumstances where the building works were incomplete and defective – claim that the builder engaged in misleading and deceptive conduct – homebuilder’s entitlement to compensation established on the evidence – homebuilder’s entitlement to a refund of project management fees not established on the evidence - homebuilder’s entitlement to relief from payment of project management fee established on the evidence PRACTICE & PROCEDURE – application for leave to be represented – where the applicant does not speak English – where the quantum of the claim exceeds $80,000.00 – where there is a degree of legal complexity in the proceedings – where leave has been granted to both parties to be represented in the proceedings in the interlocutory stages – leave granted COSTS – homebuilder’s claim for costs of production of an expert report – homebuilder’s claim for costs of the proceedings on an indemnity basis – principles to be applied – costs awarded on the ordinary basis
Legislation Cited:	Australian Consumer Law (NSW): ss 18, 236 Building Code of Australia Civil and Administrative Tribunal Act 2013: ss 36; 45; 60 Civil and Administrative Tribunal Rules 2014: rr 35; 38 Environmental Planning and Assessment Act 1979: Division 3, Part 4 Fair Trading Act 1989: ss 28; 70; 74 Home Building Act 1989: ss 4; 5; 6; 7; 7A; 7B; 7F; 7AA; 8A; 12; 13; 17; 18;…