Ding v Sanli Design and Construction Pty Ltd - [2021] NSWCATCD 116

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Ding v Sanli Design & Construction Pty Ltd [2021] NSWCATCD 116
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 applicants are to pay the respondent $7,000 immediately.
2.   On or before 31 December 2021 the respondent is to provide the applicants with certificates in relation to the electrical work and plumbing work the subject of the contract dated 08 December 2018.
3.   No order as to costs by reason of the order for costs made in the related proceedings.

Catchwords:
BUILDING AND CONSTRUCTION – Renewal proceedings - Compliance with orders - Whether to make money order - Reasonable cost of rectification

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW)
Civil and Administrative Tribunal Rules 2014 (NSW)
Home Building Act 1989 (NSW)

Cases Cited:
3D Design & Build Pty Ltd v Lynch [2016] NSWCATAP 229
Bellgrove v Eldridge [1954] HCA 36
Blessed Sydney Constructions Pty Ltd v Vasudevan [2018] NSWCATAP 98
Bondarek v NSW Land and Housing Corporation [2018] NSWCATAP 299
Bonita v Shen [2016] NSWCATAP 159
Cretazzo v Lombardi (975) 13 SASR 4
Cripps v G & M Mawson [2006] NSWCA 84
Haines v Bendall [1991] HCA 15
Hamod v State of New South Wales and Anor [2011] NSWCA 375
Latoudis v Casey [1990] HCA 59
Maiolo v Chiarelli [2016] NSWCATAP 81
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305
Megerditchian v Kumond Homes Pty Ltd [2014] NSWCATAP 120
Minifie v Maxwell [2020] NSWCATAP 30
Mitchell v Cullingral Pty Ltd [2012] NSWCA 389
News v Cotes [2019] NSWCATAP 186
Oshlak v Richmond River Council [1998] HCA 11
Pacorp Holdings Pty Ltd v Waller [2017] NSWCATAP 167
The Owners Corporation Strata Plan No. 63341 v Malachite Holdings Pty Ltd [2018] NSWCATAP 256
The Owners Strata Plan No 79642 v Five D Pty Ltd [2020] NSWCATAP 110
Thompson v Chapman [2016] NSWCATAP 6

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

REASONS FOR DECISION

Outline

These proceedings, commenced on 12 April 2021, involve a renewal application by owners against a builder. It is convenient to here note that there is a related application (HB 21/16006) that was heard at the same time as these proceedings and is the subject of separate orders and reasons.
The issues raised by the renewal application may be summarised as whether there has been compliance with orders made by the Tribunal on 22 September 2020 and, if not, what orders should now be made.
Having considered the evidence and submissions, the Tribunal determined that both parties had failed to comply with those orders and that (1) the owners should be required to comply with order 8 which, as the…

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 116
Decision Date: 20 December 2021

CaseChat Overview and Summary

Ding v Sanli Design and Construction Pty Ltd involved a dispute between Ding and Sanli Design and Construction Pty Ltd regarding compliance with orders issued in relation to a construction contract. The dispute was heard in the New South Wales Civil and Administrative Tribunal. The central issue before the tribunal was whether the applicants should be ordered to pay the respondent a sum of money for compliance with the orders and whether the respondent should be required to provide certificates relating to the electrical and plumbing work carried out under the contract.

The tribunal considered the evidence presented by both parties and the relevant statutory framework governing building and construction contracts. It found that the applicants had not fully complied with the orders and that there was a reasonable basis for the tribunal to order the applicants to pay the respondent $7,000. The tribunal also determined that the respondent should provide the applicants with the relevant certificates within the specified timeframe. The tribunal declined to make any order as to costs, citing the costs order made in the related proceedings.

In summary, the tribunal ordered the applicants to pay the respondent $7,000 and mandated that the respondent provide the applicants with certificates concerning the electrical and plumbing work. The tribunal refrained from making any further order regarding costs.

Orders

Orders of the court

1. The applicants are to pay the respondent $7,000 immediately.

2. On or before 31 December 2021 the respondent is to provide the applicants with certificates in relation to the electrical work and plumbing work the subject of the contract dated 08 December 2018.

3. No order as to costs by reason of the order for costs made in the related proceedings.

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 116
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 applicants are to pay the respondent $7,000 immediately. 2. On or before 31 December 2021 the respondent is to provide the applicants with certificates in relation to the electrical work and plumbing work the subject of the contract dated 08 December 2018. 3. No order as to costs by reason of the order for costs made in the related proceedings.
Catchwords:	BUILDING AND CONSTRUCTION – Renewal proceedings - Compliance with orders - Whether to make money order - Reasonable cost of rectification
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Home Building Act 1989 (NSW)
Cases Cited:	3D Design & Build Pty Ltd v Lynch [2016] NSWCATAP 229 Bellgrove v Eldridge [1954] HCA 36 Blessed Sydney Constructions Pty Ltd v Vasudevan [2018] NSWCATAP 98 Bondarek v NSW Land and Housing Corporation [2018] NSWCATAP 299 Bonita v Shen [2016] NSWCATAP 159 Cretazzo v Lombardi (975) 13 SASR 4 Cripps v G & M Mawson [2006] NSWCA 84 Haines v Bendall [1991] HCA 15 Hamod v State of New South Wales and Anor [2011] NSWCA 375 Latoudis v Casey [1990] HCA 59 Maiolo v Chiarelli [2016] NSWCATAP 81 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 Megerditchian v Kumond Homes Pty Ltd [2014] NSWCATAP 120 Minifie v Maxwell [2020] NSWCATAP 30 Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 News v Cotes [2019] NSWCATAP 186 Oshlak v Richmond River Council [1998] HCA 11 Pacorp Holdings Pty Ltd v Waller [2017] NSWCATAP 167 The Owners Corporation Strata Plan No. 63341 v Malachite Holdings Pty Ltd [2018] NSWCATAP 256 The Owners Strata Plan No 79642 v Five D Pty Ltd [2020] NSWCATAP 110 Thompson v Chapman [2016] NSWCATAP 6
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 21/16050 (related proceedings HB 21/16006)
Publication restriction:	Nil