Hadwani v Hanna

Case [2025] NSWCATCD 85


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)

[2023] NSWSC 1162

Bonita v Shen [2016] NSWCATAP 159

Brooks v Gannon Constructions Pty Limited

[2017] NSWCATCD 12

Galdona v Peacock [2017] NSWCATAP 64

Gallagher v Masters Installation Pty Ltd

[2017] NSWCATAP 117

Haines v Bendall [1991] HCA 15

Latoudis v Casey [1990] HCA 59

Makita (Australia) Pty Ltd v Sprowles

[2001] NSWCA 305

Oshlak v Richmond River Council [1998] HCA 11

Pacorp Holdings Pty Ltd v Waller

[2017] NSWCATAP 167

News v Cotes [2019] NSWCATAP 186

Thompson v Chapman [2016] NSWCATAP 6

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

  1. 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.

  2. 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

  1. 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.

  2. 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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Hadwani v Hanna [2025] NSWCATCD 85
Case
[2025] NSWCATCD 85
Decision Date

CaseChat Overview and Summary

The matter of Hadwani v Hanna involved the applicants, who alleged incomplete and defective work by the respondent, leading to property damage. The dispute was heard in a relevant tribunal, which had to determine whether the applicants' claims for damages and costs were substantiated. The applicants sought immediate payment for the alleged damages, along with costs on the ordinary basis. The respondent contested these claims, arguing against the immediate payment and the amount claimed. The tribunal was tasked with assessing the merits of the applicants' claims and deciding on the appropriate relief.

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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