Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Hadwani v Hanna [2025] NSWCATCD 85 Hearing dates: 22 May 2025, 4 June 2025 Date of orders: 13 June 2025 Decision date: 13 June 2025 Jurisdiction: Consumer and Commercial Division Before: Graham Ellis SC, Senior Member Decision: (1) The respondent is to pay the applicants $116,874.64 immediately.
(2) The respondent is to pay the applicants’ costs, on the ordinary basis, as agreed or assessed.
Catchwords: BUILDING AND CONSTRUCTION – Incomplete work, defective work, damage to property alleged
CIVIL PROCEDURE – Assessment of damages –
ex parte hearing – Tribunal should neither adopt claims of an applicant without scrutiny nor act as advocate for the absent respondent
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW)
Civil and Administrative Tribunal Rules 2014 (NSW)
Home Building Act 1989 (NSW)
Cases Cited: Ashby v Slipper [2014] FCAFC 15
Bellgrove v Eldridge [1954] HCA 36
Benjamin & Khoury Pty Ltd v Rahme (No 4)
Bonita v Shen [2016] NSWCATAP 159
Brooks v Gannon Constructions Pty Limited
Galdona v Peacock [2017] NSWCATAP 64
Gallagher v Masters Installation Pty Ltd
Haines v Bendall [1991] HCA 15
Latoudis v Casey [1990] HCA 59
Makita (Australia) Pty Ltd v Sprowles
Oshlak v Richmond River Council [1998] HCA 11
Pacorp Holdings Pty Ltd v Waller
Texts Cited: None cited
Category: Principal judgment Parties: Shaira Hadwani, Sahil Hadwani (Applicant)
George Roy Hanna (Respondent)Representation: G Abood, ACL Lawyers (Applicant)
Respondent (No appearance)
File Number(s): 2024/00352508 Publication restriction: Nil
REASONS FOR DECISION
Outline
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On 23 September 2024 the applicants (the owners) commenced these proceedings against the respondent (the builder). The primary claims were for defective work and incomplete work in relation residential building work that resulted from two accepted quotations, with the resulting contracts having been terminated by a letter from the owners’ solicitor dated 2 July 2024.
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Since the builder did not lodge any documents or attend the hearing, it was only necessary to consider the evidence and submissions of the owners. Having done so, the Tribunal determined that the owners were entitled to damages of $116,874.64 and an order that the builder pay their costs of the application.
Hearing
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At an intended hearing on 22 May 2025, the applicants were in attendance but not the respondent. As the applicants’ evidence did not address the proper basis for the assessment of damages, the hearing was adjourned to provide (1) an opportunity for additional evidence to be lodged, and (2) for the respondent to attend the hearing. When the hearing resumed on 4 June 2025, Mr Abood again represented the owners. Again, there was no appearance by or for the builder.
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In the Civil and Administrative Tribunal Rules 2014 (NSW) (the Rules), r 35(2) applies to this Division of the Tribunal. It reads as follows:
(2) Where a hearing is held for proceedings to…
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- AGLC
- Hadwani v Hanna [2025] NSWCATCD 85
- Case
- [2025] NSWCATCD 85
- Decision Date
CaseChat Overview and Summary
The primary legal issues the tribunal had to resolve included whether the applicants had sufficiently substantiated their claims for damages and whether the tribunal should award the immediate payment requested. Another issue was the assessment of the applicants' costs and the appropriate basis for those costs. The tribunal had to consider the evidence presented by the applicants and the respondent, as well as the principles of civil procedure regarding ex parte hearings and the tribunal's role in such proceedings.
The tribunal found that the applicants had presented evidence supporting their claims of incomplete and defective work by the respondent. However, the tribunal also noted that the claims for damages and costs were not entirely without scrutiny. The tribunal emphasised that it should not adopt the applicants' claims without proper evaluation nor act as an advocate for the absent respondent. Consequently, the tribunal determined that the applicants' claims were substantiated to a degree that warranted immediate payment of the specified amount. Additionally, the tribunal ordered that the respondent pay the applicants' costs on the ordinary basis, as agreed or assessed.
The final orders of the tribunal included an immediate payment of $116,874.64 to the applicants and an order for the respondent to pay the applicants' costs on the ordinary basis, as agreed or assessed. This decision underscored the tribunal's responsibility to carefully evaluate claims in ex parte hearings and to ensure that the applicants' rights were protected while also considering the respondent's position.
Orders
Orders of the court
(1) The respondent is to pay the applicants $116,874.64 immediately.
(2) The respondent is to pay the applicants’ costs, on the ordinary basis, as agreed or assessed.
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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