Gassman v Peck - [2017] NSWCATCD 90

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Gassman v Peck [2017] NSWCATCD 90
Hearing dates: 17 February 20179 June 2017 (final submissions received 17 July 2017)
Decision date: 13 October 2017
Jurisdiction: Consumer and Commercial Division
Before: T Simon, Senior Member
Decision:
The Tribunal makes the following orders:

1. The builder is to pay the homeowners the amount of $17,475.22 immediately.

2. In the event that either party intends to make submissions in relation to costs, the party making the costs application is to give to the other party and the Tribunal, either in person or by post, any documents and submissions they intend to rely on in relation to the costs application by 27 October 2017.

3. The parties are to provide to the other party and the Tribunal, either in person or by post, any documents and submissions in response to a costs application by 10 November 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 15 November 2017. If no further submissions are received the Tribunal will proceed to make a decision on the papers.
Catchwords: Home Building – preferred outcome – s48MA – Breach of Statutory Warranty.
Legislation Cited: Civil and Administrative Tribunal Act 2013
Home Building Act 1989 (NSW)
Home Building Amendment Act 2014
Cases Cited: Brooks v Gannon Constructions Pty Limited [2017] NSWCATCD 12
Galdona v Peacock [2017] NSWCATAP 64
John Peter Maiolo v Frank Chiarelli and Anor [2016) NSWCATAP 81
3D Design & Build Pty Ltd v Lynch [2016] NSWCATAP 229
Category: Principal judgment
Parties: Peter Gassman and Beth Roddy (applicants)
Nathan Peck (respondent)
Representation:
Counsel
D A Moujalli (for the applicants)
Solicitors:
Macguire & McInerney for the applicants’
RMB Lawyers for the respondent

File Number(s): HB 16/21767
Publication restriction: Nil

Reasons for the Decision

The Application

For ease of reference in these reasons the applicants shall be referred to as homeowners and the respondent as builder.
On 9 May 2016, the homeowners made an application to renew proceedings HB 14/17549 in which orders had been made by consent on 11 December 2015. The orders required the builder to undertake and complete agreed works in a proper and workmanlike manner on or before 24 March 2016. The Tribunal has decided in this matter to make an order for money for rectification of the defective works.

Background

The homeowners made application HB 14/17549 on 1 April 2014. The application related to defective works which the homeowners allege the builder was liable for. The respondent had initially been named as ‘Impeckable Constructions Pty Limited’ in that application. That was the name of the builder as it appeared on the contract. The respondents name has subsequently been amended to Nathan Peck. Both parties have proceeded on the basis that was the builder with whom the homeowners contracted.
Both parties engaged experts. Mr Connor provided a report and gave evidence for…

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 Gassman v Peck

Details

AGLC: Gassman v Peck [2017] NSWCATCD 90
Case: [2017] NSWCATCD 90
Decision Date: 13 October 2017

CaseChat Overview and Summary

The case of Gassman v Peck involved a dispute between homeowners and a builder over the quality of a home building project. The homeowners claimed that the builder had breached statutory warranties under the Home Building Act 1989. The dispute was heard by the Queensland Civil and Administrative Tribunal. The central legal issue was whether the builder had breached the statutory warranties concerning the quality of work and materials used in the construction of the home. Specifically, the homeowners argued that the builder had failed to meet the standards required under sections 48MA and 48MB of the Act.

The Tribunal found that the builder had indeed breached the statutory warranties. The evidence showed that the work completed was not of the required standard and that the materials used were substandard. The Tribunal concluded that the builder had not taken reasonable care to ensure that the work was carried out in a workmanlike manner and that the materials used were of good quality. As a result, the Tribunal ordered the builder to pay the homeowners compensation for the defects found. The amount of $17,475.22 was determined to be the appropriate compensation for the breach of statutory warranties.

The Tribunal also outlined the process for any potential applications regarding costs. The builder or the homeowners could apply for costs associated with the proceedings, but both parties had to submit their documents and submissions by specific deadlines. If either party wished to be heard in person regarding the costs, they had to notify the Tribunal by a certain date. Otherwise, the decision on costs would be made based on the written submissions.

Orders

Orders of the court

The Tribunal makes the following orders:

1. The builder is to pay the homeowners the amount of $17,475.22 immediately.

2. In the event that either party intends to make submissions in relation to costs, the party making the costs application is to give to the other party and the Tribunal, either in person or by post, any documents and submissions they intend to rely on in relation to the costs application by 27 October 2017.

3. The parties are to provide to the other party and the Tribunal, either in person or by post, any documents and submissions in response to a costs application by 10 November 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 15 November 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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Medium Neutral Citation:	Gassman v Peck [2017] NSWCATCD 90
Hearing dates:	17 February 20179 June 2017 (final submissions received 17 July 2017)
Decision date:	13 October 2017
Jurisdiction:	Consumer and Commercial Division
Before:	T Simon, Senior Member
Decision:	The Tribunal makes the following orders: 1. The builder is to pay the homeowners the amount of $17,475.22 immediately. 2. In the event that either party intends to make submissions in relation to costs, the party making the costs application is to give to the other party and the Tribunal, either in person or by post, any documents and submissions they intend to rely on in relation to the costs application by 27 October 2017. 3. The parties are to provide to the other party and the Tribunal, either in person or by post, any documents and submissions in response to a costs application by 10 November 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 15 November 2017. If no further submissions are received the Tribunal will proceed to make a decision on the papers.
Catchwords:	Home Building – preferred outcome – s48MA – Breach of Statutory Warranty.
Legislation Cited:	Civil and Administrative Tribunal Act 2013 Home Building Act 1989 (NSW) Home Building Amendment Act 2014
Cases Cited:	Brooks v Gannon Constructions Pty Limited [2017] NSWCATCD 12 Galdona v Peacock [2017] NSWCATAP 64 John Peter Maiolo v Frank Chiarelli and Anor [2016) NSWCATAP 81 3D Design & Build Pty Ltd v Lynch [2016] NSWCATAP 229
Category:	Principal judgment
Parties:	Peter Gassman and Beth Roddy (applicants) Nathan Peck (respondent)
Representation:	Counsel D A Moujalli (for the applicants) Solicitors: Macguire & McInerney for the applicants’ RMB Lawyers for the respondent
File Number(s):	HB 16/21767
Publication restriction:	Nil