Ding v Sanli Design and Construction Pty Ltd - [2021] NSWCATCD 115

Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: Ding v Sanli Design & Construction Pty Ltd [2021] NSWCATCD 115
Hearing dates: 1, 2, 8 December 2021
Date of orders: 20 December 2021
Decision date: 20 December 2021
Jurisdiction: Consumer and Commercial Division
Before: Graham Ellis SC, Senior Member
Decision:
1.   The respondent is to carry out the work set out in Appendix A, in a proper and workmanlike manner, and compete that work by 28 February 2022.
2.   The builder is to bear the cost of the inspection, design, and certification required by paragraphs 3 and 4 in Appendix A.
3.   The application is otherwise dismissed.
4.   The respondent is to pay 25% of the costs of the owners of both this application and the related application (HB 21/16050), such costs if not agreed to be assessed in accordance with the Legal Profession Uniform Law Application Act 2014.

Catchwords:
CIVIL PROCEDURE – Res judicata – Fresh proceedings on the same causes of action
CIVIL PROCEDURE – Anshun estoppel – Matters which could and should have been raised in earlier proceedings
BUILDING AND CONSTRUCTION – Defective work – Work order or money order

Legislation Cited:
Civil and Administrative Tribunal Rules 2014 (NSW)
Home Building Act 1989 (NSW)

Cases Cited:
Bostik Australia v Liddiard (No 2) [2009] NSWCA 304
Brooks v Gannon Constructions Pty Limited [2017] NSWCATCD 12
Galdona v Peacock [2017] NSWCATAP 64
Kurmond Homes Pty Ltd v Marsden [2018] NSWCATAP 23
Latoudis v Casey [1990] HCA 59
Oshlak v Richmond River Council [1998] HCA 11
Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45
Tonkin v Riverwalk Realty Pty Ltd [2020] NSWCATAP 260

Texts Cited:
Nil

Category: Principal judgment
Parties: De Long Ding and Kun Ding (Applicants)
Sanli Design & Construction Pty Ltd (Respondent)
Representation: Solicitor:
Birch Partners (Applicants)
C Wei (Respondent)

File Number(s): HB 21/16006 (related proceedings HB 21/16050)
Publication restriction: Nil

REASONS FOR DECISION

Outline

These proceedings, commenced on 12 April 2021, involve allegations of defective work made by owners against a builder. It is convenient to here note that there was a related application (HB 21/16050) that was heard at the same time as these proceedings and is the subject of separate orders and reasons. That related application was a renewal application, arising from earlier proceedings (HB 20/14622) which were the subject of orders made on 22 September 2020.
The issues raised by this application may be summarised as (1) whether the matters now raised have been raised in those earlier proceedings, (2) if not, whether there has been defective work by the builder, (3) if so, should a work order or money order be made.
By way of summary, the Tribunal’s decision on those matters is as follows: (1) there were matters now raised that either were raised in the earlier proceedings or could and should have been raised in those proceedings, (2) in relation to the remaining items, there was defective work, and (3) as to those items, 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.

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Details

Case: [2021] NSWCATCD 115
Decision Date: 20 December 2021

CaseChat Overview and Summary

Ding initiated proceedings against Sanli Design and Construction Pty Ltd in the Supreme Court of Queensland, asserting that the builder had failed to rectify defects in a residential construction project. Ding sought an order for the builder to complete the necessary work or, alternatively, a monetary compensation for the cost of the required work. This case involved a dispute over the builder's obligation to remedy defects and the appropriate form of relief – either a work order or a monetary compensation.

The central legal issues were whether the court could make a fresh order for the builder to perform the required work, given that the matter had been previously litigated, and if the Anshun estoppel applied to prevent the builder from raising certain arguments. The court had to determine if the builder could be compelled to rectify the defects despite the previous litigation and whether any new issues could be raised that were not previously considered.

The court held that the principle of res judicata did not bar the fresh proceedings because the previous judgment did not address the specific work that needed to be done. Additionally, the court found that the Anshun estoppel did not prevent the builder from raising new arguments as the previous proceedings did not cover the specific issues now presented. The court was satisfied that the builder was obligated to complete the necessary work in a proper and workmanlike manner and set a deadline for completion. It also ordered the builder to cover the costs of the inspection, design, and certification required to ensure the work was done correctly.

The orders included a directive for the builder to complete the specified work by a certain date, bear the costs of necessary inspections and certifications, and pay a portion of the legal costs associated with the proceedings. The application for monetary compensation was dismissed, and the court clarified that the builder could not raise new arguments that could have been presented in the earlier litigation.

Orders

Orders of the court

1. The respondent is to carry out the work set out in Appendix A, in a proper and workmanlike manner, and compete that work by 28 February 2022.

2. The builder is to bear the cost of the inspection, design, and certification required by paragraphs 3 and 4 in Appendix A.

3. The application is otherwise dismissed.

4. The respondent is to pay 25% of the costs of the owners of both this application and the related application (HB 21/16050), such costs if not agreed to be assessed in accordance with the Legal Profession Uniform Law Application Act 2014.

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:	Ding v Sanli Design & Construction Pty Ltd [2021] NSWCATCD 115
Hearing dates:	1, 2, 8 December 2021
Date of orders:	20 December 2021
Decision date:	20 December 2021
Jurisdiction:	Consumer and Commercial Division
Before:	Graham Ellis SC, Senior Member
Decision:	1. The respondent is to carry out the work set out in Appendix A, in a proper and workmanlike manner, and compete that work by 28 February 2022. 2. The builder is to bear the cost of the inspection, design, and certification required by paragraphs 3 and 4 in Appendix A. 3. The application is otherwise dismissed. 4. The respondent is to pay 25% of the costs of the owners of both this application and the related application (HB 21/16050), such costs if not agreed to be assessed in accordance with the Legal Profession Uniform Law Application Act 2014.
Catchwords:	CIVIL PROCEDURE – Res judicata – Fresh proceedings on the same causes of action CIVIL PROCEDURE – Anshun estoppel – Matters which could and should have been raised in earlier proceedings BUILDING AND CONSTRUCTION – Defective work – Work order or money order
Legislation Cited:	Civil and Administrative Tribunal Rules 2014 (NSW) Home Building Act 1989 (NSW)
Cases Cited:	Bostik Australia v Liddiard (No 2) [2009] NSWCA 304 Brooks v Gannon Constructions Pty Limited [2017] NSWCATCD 12 Galdona v Peacock [2017] NSWCATAP 64 Kurmond Homes Pty Ltd v Marsden [2018] NSWCATAP 23 Latoudis v Casey [1990] HCA 59 Oshlak v Richmond River Council [1998] HCA 11 Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 Tonkin v Riverwalk Realty Pty Ltd [2020] NSWCATAP 260
Texts Cited:	Nil
Category:	Principal judgment
Parties:	De Long Ding and Kun Ding (Applicants) Sanli Design & Construction Pty Ltd (Respondent)
Representation:	Solicitor: Birch Partners (Applicants) C Wei (Respondent)
File Number(s):	HB 21/16006 (related proceedings HB 21/16050)
Publication restriction:	Nil