Hadwani v Hanna

[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

3. 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.

4. 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 which this rule applies, the Tribunal may proceed to hear the proceedings in the absence of a party who has failed to attend the hearing if-

(a)   the Tribunal is satisfied that notice of the hearing was duly served on the party, or

(b)   the Tribunal, being satisfied that service of notice of the hearing on the party has been duly attempted or having given directions under rule 15 to bring it to the notice of the party, considers that justice requires that the matter be dealt with in the absence of the party.

5. There appears on the Tribunal’s file, a copy of a notice of hearing addressed to the builder advising the date, time and location of the hearing. The Tribunal is satisfied that the builder has received notices since the commencement of these proceedings, including that notice of today’s hearing.

6. The Tribunal is satisfied that the notice of hearing has been duly served and that the Tribunal’s discretion should be exercised in favour of proceeding with the hearing because the builder did not (1) submit any documents, (2) attended any hearing, or (3) provide any explanation for his failure to attend.

7. It is noted that the addresses to which those notices have been sent cover both the street address of the builder, as shown on an ASIC search, and the email address he used on 17 June 2024 to send a message to Shaira Hadwani that was headed “Official Letter for George Hanna” (A150, ie page 150 in Exhibit A).

8. However, proceeding in the absence of the builder does not remove the need for (1) the owners, who bear the onus of proof, to establish both a legal and factual basis for the claims made in these proceedings, and (2) the Tribunal to assess the evidence.

Documents

9. Documents admitted as evidence or marked for identification are listed below:

Exhibit A   Documents received from the owners on 15 November 2024

Exhibit B   Supplementary statement of Sahil Hadwani, dated 26 May 2025

Exhibit C   Supplementary report of Paul Cavallo, dated 26 May 2025

Exhibit D   Scott Schedule

MFI 1      Points of Claim (amended)

MFI 2      Orders Sought (amended)

Cross-examination

10. As there was no appearance by or for the builder, there was no cross-examination.

Submission

11. Mr Aboud made brief oral submissions in support of the owners’ case.

Relevant law

12. As these proceedings include claims that there has been defective work, it is necessary to consider the statutory warranties for residential building work, set out in s 18B(1) of the Home Building Act 1989 (NSW) (the HBA), which is quoted in full below:

(a)   a warranty that the work will be done with due care and skill and in accordance with the plans and specifications set out in the contract,

(b)   a warranty that all materials supplied by the holder or person will be good and suitable for the purpose for which they are used and that, unless otherwise stated in the contract, those materials will be new,

(c)   a warranty that the work will be done in accordance with, and will comply with, this and any other law,

(d)   a warranty that the work will be done with due diligence and within the time stipulated in the contract or, if no time is stipulated, within a reasonable time,

(e)   a warranty that, if the work consists of the construction of a dwelling, the marking or alternations or additions to a dwelling or the repairing, renovation, decoration or protective treatment of a dwelling, the work will result, to the extent of the work conducted, in a dwelling that is reasonably fit for occupation as a dwelling,

(f)   a warranty that the work and any materials used in doing the work will be reasonably fit for the specified purpose or result, if the person for whom the work is done expressly makes know to the holder of the contractor licence or person required to hold a contractor’s licence, or another person with express or apparent authority to enter into or vary any contractual arrangements on behalf of the holder or person, the particular purpose for which the work is required or the result that the owner desires that work to achieve, so as to show that the owner relies on the holder’s or person’s skill or judgment.

13. It is also necessary to note that s 48MA of the HBA provides:

A court or tribunal determining a build claim involving an allegation of defective residential building work or specialist work by a party to the proceedings (the responsible party) is to have regard to the principle that rectification of the defective work by the responsible party is the preferred outcome.

14. Galdona v Peacock [2017] NSWCATAP 64 is an Appeal Panel decision which noted that s 48MA provided for a preferred, not a mandatory outcome. The Tribunal must weigh up the factors in each case and make an evidence-based decision: Brooks v Gannon Constructions Pty Limited [2017] NSWCATCD 12.

15. When a money order is made, the well-established common law principle for assessing damages for a breach of contract is that the party affected by that breach should be put in the same position as if the breach had not occurred: Haines v Bendall [1991] HCA 15 (Haines).

16. When assessing damages for defective work, Bellgrove v Eldridge [1954] HCA 36 (Bellgrove) established that the rectification method must be both necessary and reasonable and the rectification cost must be reasonable. That case also makes it clear that any unpaid balance of the contract sum must be taken into consideration.

17. It is worth repeating the example provided previously in these proceedings. Assume there was a contract price of $100,000 of which $80,000 was paid. If the cost to complete the work and rectify defective work by the builder was $50,000 then awarding damages of $50,000 would give the owner work worth $100,000 despite only paying $80,000. The damages that should be awarded in that case are $30,000, calculated as the cost of completion and rectification ($50,000) less the unpaid balance of the contract sum ($20,000). It can readily be seen that the owner would outlay $130,000 ($80,000 paid under the contract plus $50,000 for completion and rectification) but would receive damages of $30,000, giving a net outlay of $100,000 which is equal to the contract price. As a result, awarding damages of $30,000 puts the owner in the same position as if the work covered by the contract had been completed without there being any defective work.

18. As it is with defective work, so it is with incomplete work: an owner is not entitled to recover the suggested cost of completion; only the additional cost of completion. Accordingly, when there are claims for defective and incomplete work, it is necessary to determine the cost of completion and the cost of rectification, making sure there is no double-counting, and then deduct any unpaid balance of the contract sum.

19. The assessment of work alleged to be incomplete and/or defective usually involves expert evidence. An expert witness is permitted to give opinion evidence. However, there are matters which the Tribunal must consider when deciding what weight to give to that evidence.

20. The first is whether the expert has qualifications and/or experience in the relevant field.

21. Secondly, whether the expert has read and agreed to be bound by the Tribunal’s Procedural Direction 3 which reminds that it is the duty of an expert to assist the Tribunal and not be an advocate for the party for whom he provided a report.

22. Thirdly, the decisions such as Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 (Makita) make it clear that, for such evidence to be accepted, the following considerations apply: (1) the expert’s opinion must clearly indicate the facts upon which it is based, (2) those facts must be proved so there is a factual basis for the opinion, (3) the reasons or the process of reasoning for the opinion must be disclosed, and (4) any opinion must fall within the qualifications and experience of the expert.

Jurisdiction

23. These proceedings relate to residential building work, seek an amount within the limits of the Tribunal’s jurisdiction, and have been commenced within time. As a result, the Tribunal has jurisdiction under the HBA to hear and determine this application.

Consideration

24. It is first necessary to assess the evidence and identify the issues requiring determination before making findings of fact relevant to those issues.

Assessment of evidence

25. The position in relation to evidence that is neither challenged nor contradicted was set out in Ashby v Slipper [2014] FCAFC 15 at [77] where it was said that:

… as a general proposition, evidence, which is not inherently incredible and which is unchallenged, ought to be accepted: Precision Plastics Pty Ltd v Demir (1975) 132 CLR 372 at 370-371 (per Gibbs J, Stephen J agreeing, Murphy J generally agreeing). The evidence may of course be rejected if it is contradicted by facts otherwise established by the evidence or the particular circumstances point to its rejection.

26. This case also raises a difficulty in relation to the assessment of damages. Gallagher v Masters Installation Pty Ltd [2017] NSWCATAP 117 (Gallagher) is often cited in support of the proposition that, in circumstances where precision is not possible, the Tribunal must do the best it can, based on the evidence that is available. Pacorp Holdings Pty Ltd v Waller [2017] NSWCATAP 167 at [58] is but one example of the application of what was said in Gallagher and the position was succinctly stated in that case as being that provided that some evidence of loss or damage has been produced, difficulty of assessment is not a bar to the assessment of damages, and where precise evidence is not available, the court or tribunal must do the best it can.

27. The difficulties which arise in this case are (1) assessing damages in the absence of the respondent, and (2) the claim for damage to the owners’ property said to have been caused by the builder increasing from $11,002.50 when these proceedings were before the Tribunal on 22 May 2025 to $22,492.80 when the proceedings were relisted for hearing less than two weeks later, on 4 June 2025.

28. Shaira Hadwani provided an initial statement dated 14 November 2024 (A1-18) and a supplementary statement dated 26 May 2025 (B1-2).

29. The first statement covered the events leading to the provision of quotes and invoices, and the amounts paid. It referred to photos but did not either identify those photos or indicate when they were taken. Exhibit A does contain photos (A90-120), with accompanying descriptions, but there is no indication of who made those comments. After setting out details of communications between the parties, but not indicating where any supporting documents were located, it was indicated that unused sandstone was sold for $1,200. The supplementary statement provided evidence in relation to property said to have been damaged by the builder. This statement did identify the photos said to support the claims made. However, despite being only granted leave to provide evidence to support the amount claimed in the initial report of Mr Cavallo, this statement included evidence going to additional claims.

30. Sahil Hadwani provided a statement dated 14 November 2024 (A19-22). It only raised two relevant matters: (1) that on 15 July 2024 a skip bin operator refused to remove a skip bin unless he was paid $1,485, but no supporting document for that payment was provided, and (2) that on 12 June 2024 the builder said he would not return to the subject property until he was paid more money.

31. Daniel Duke is a neighbour of the owners who is a civil engineer. He set out what he considered to be the primary tasks of the builder’s work and his opinions in relation to the work done by the builder. His statement also said his front fence was damaged as well as “the majority of the front lawn”.

32. Lawrence Bechara is a stonemason who purchased sandstone blocks from the owners for $1,200. He also provided opinion evidence.

33. James Avery provided a statement outlining his conversations with the builder on 20 May 2024 and 7 June 2024 which are not relevant to the issues.

34. While there is no discernible basis for disbelieving the evidence of any of those witnesses, the opinion evidence of Mr Duke and Mr Bechara has low weight when there are no details of their qualifications or experience and nothing to suggest they have read agreed to be bound by the Tribunal’s Code of Conduct.

35. Paul Cavallo provided an initial statement dated 29 October 2024 (A163-195) and a Scott schedule dated November 2024. As a result of the initial hearing on 22 May 2025, he prepared a supplementary statement dated 25 May 2025 (Exhibit C) and a revised Scott schedule dated 26 May 2025 (Exhibit D).

36. The evidence of Mr Cavallo is more conveniently considered below, when dealing with the issues requiring determination in these proceedings.

Issues

37. It is convenient to here list the issues requiring determination:

1. What were the contracts?

2. What amounts were payable under those contracts?

3. What amounts were paid by the owners to the builder?

4. Was the contract validly terminated by the owners?

5. What is the reasonable cost of completion of the work?

6. Was there defective work?

7. If so, should a work order or a money order be made?

8. If a work order, what should be the wording of that order?

9. If a money order, what amount should be awarded?

10. Was there damage to the owner’s property caused by the builder?

11. If so, what amount can the owners recover in respect of that damage?

12. Can the applicants recover the amount paid to remove a skip bin?

Findings of fact

38. Having reviewed the evidence, the Tribunal makes the following findings of fact:

1. On or shortly after 6 March 2024 the owners accepted a quote for $40,130.00 (A52-53) from the builder who used his Australian Business Number (ABN) and at that time traded under his business name Dynamic Garden Co (the Stage 1).

2. On or shortly after 18 March 2024 the owners accepted a quote for $24,360.00 (A52-53) from the builder who used his ABN and at that time traded under his business name Dynamic Garden Co (Stage 2).

3. By reason of those quotes, plus subsequent variations and/or additional agreements (the Works), the builder invoiced the owners a total of $80,054.60 for the Works in respect of which the owners paid a total of $64,613.10, giving an unpaid balance of $15,441.50.

4. The builder failed to complete the Works and carried out defective work in that it was not done with due care and skill (as indicated below).

5. While carrying out the Works, the builder caused damage to property (as indicated below).

6. On 12 June 2024 the builder refused to return to the owners’ property.

7. By letter dated 2 July 2024 (A158) the owners’ contracts with the builder were terminated.

8. On 15 July 2024 the owners had to pay $1,485.00 to have a skip bin, placed on their property by the builder, removed.

9. The builder did not hold the licence he was required to have to carry out the Works and falsely sought to suggest he did by giving a false licence number, by placing the numerals of his ABN after the letters “LCN”.

What were the contracts?

39. The scope of work for the Stage 1 contract was:

1. Removing all the existing pavers in the backyard around the pool.

2. Removing all the coping pavers and bush rock around the pool.

3. Removing and re-installing the pool pump (with the location of the pool pump to be decided during the work).

4. Excavating the left back corner of the house (topsoil) to ground level.

5. Ground level to be highest at the house, falling away towards the backyard, pool, and neighbouring properties.

6. Build a curved retaining wall with a setback seating option (second row of blocks to be set back) with retaining wall being tight (no gaps) and hard up against the fence. The blocks were to be coated to protect them. A trench to be behind the retaining wall, with ag line, blue metal and geofabric. That ag line was to be connected to the storm water system.

7. 500mm x 500mm x 1000mm white sandstone logs with a rough finish (to be confirmed). The retaining wall was to be 1m high.

8. Grass to be hard up against the sandstone and down to the neighbouring fence. That grass to stop in line with a stormwater pit.

9. Ag lines to be placed under the gras to absorb water.

10. All areas not grassed to be paved: around the pool and down the side of the house to the front gate on the right side of the house.

11. The ground to be levelled and a road base screed to be applied prior to paving.

40. The scope of work for the Stage 2 contract was:

1. Extend the balcony to the corner of the window bay and wrap around to the side of the house.

2. The balcony to be built of bricks with a concrete slab on top of the patio extension.

3. A stepped ramp to be built from the side of the house up unto the backyard and directly into the extension.

4. The ramp and extension to be separated by pot plants.

1. The driveway to be extended to the peg marking.

2. A retaining wall to be bult alongside the driveway extension widening, with sandstone cladding and capping.

3. A sloping ramp from the driveway extension to the backyard.

41. There were four additional agreements which required the owners to pay:

1. $9,051.50 for extra soil removal,

2. $2,008.00 for emergency plumbing repairs,

3. $700.00 for four sandstone logs, and

4. $3,805.00 for electrical works.

42. Those contracts were between the owners and the builder and not with the company Dynamic Garden Co Pty Ltd because (1) that company was not registered until 17 May 2024, and (2) that company was never disclosed to the owners prior to an email dated 17 June 2024 (A150).

What amounts were payable under those contracts?

43. The total amount payable under those contracts was $80,054.60.

What amounts were paid by the owners to the builder?

44. The total amount paid in respect of those contracts was $64,613.10.

Was the contract validly terminated by the owners?

45. The builder was not licensed to carry out the Works, he failed to take out insurance of the Works and sought deposits of more than 10% of the contract sum. Hence, the builder breached s 4, s 8 and s 92 of the HBA. Although those breaches do not provide a basis for claiming damages, breaches of both s 4 and s 92 provide a basis for terminating the contract. Accordingly, the Tribunal determines that the contract was validly terminated by the 2 July 2024 letter (A157).

What is the reasonable cost of completion of the work?

46. The supplementary report of Mr Cavallo set out details of how he arrived at the amount of $87,605 then added a builder’s margin of 20% and GST to arrive at a figure of $115,638.60. However, there are areas where the Tribunal considers his estimates to be on the high side such that, to award the amount claim would be to overcompensate the owners.

47. In the absence of the builder, it is not for the Tribunal to take his side. By analogy with a football match, the Tribunal is the referee and not a coach for one of the teams. On the other hand, it is not for the Tribunal to simply adopt every claim of the owners without any scrutiny.

48. The owners are only entitled to a reasonable amount, and the Tribunal considers the amount now claimed to exceed what is a reasonable amount. Rather than conduct an item-by-item analysis, which would be akin to the Tribunal becoming an expert witness for the builder.

49. Doing the best it can with the available evidence, the Tribunal considers the appropriate course is to apply a 10% discount to the amount suggested by Mr Cavallo. That gives $104,074.74 (90% of $115,638.60) as the amount to be awarded in respect of the cost of completion.

Was there defective work?

50. The section of Mr Cavallo’s first report dealing with defects (A174-175) provided little in the way of reasons for his opinions. Despite a warning being provided in the Tribunal’s reasons published on 22 May 2025, there was little if any improvement in the supplementary report (C6).

1. Under the description “Excavation, footing and yard levelling”, it was said “Yard level to desired level is incomplete”. That would normally warrant excluding the suggested cost of $12,670 on the basis that such work was incomplete and not defective. However, as that cost was not included in the assessed cost of completion in the supplementary report, an amount should be allowed under this heading. In that supplementary report, the revised amount claimed is $12,870, the difference being due to a typographical error in the line which reads “1 x 10m3 Bins @ $1470 = 1,670”. That amount that should have been $12,670.

2. Both reports suggest an amount of $11,100 for a retaining wall that was said to have been built with “unacceptable quality logs” but that is an opinion that is not supported by either reasons or a process of reasoning.

3. The third item in the original report simply suggested that the paving had nil value. That item does not require consideration as it was removed from the supplementary report.

4. The fourth item in the original report, which became the third item in the supplementary report, related to drainage behind the retaining wall. In both reports, the amount claimed was $2,860. However, no reasons were given in either report for why this work was said to be defective.

5. The fifth item in the original report, which became the fourth item in the supplementary report, was removing and reinstalling the pool pump, for which an amount of $1,000 was suggested. In the supplementary report, that amount was increased to $3,500 with the suggestion that was a quoted amount. However, no quote was provided. The hearing on 22 May 2025 was not adjourned so that the owners could increase their claim for defective work. It was amended so (1) the cost of completion of incomplete work could be provided, and (2) reasons could be added for the opinions expressed. As with the previous item, no reason was given for why this item involved defective work.

51. In the original report, Mr Cavallo assessed the cost of rectification at $27,360. In his supplementary report, he suggested $30,330 and then remedied his earlier failure to add 20% for builder’s margin and 10% for GST: obtaining a total of $40,035.60, almost 50% higher than the amount originally claimed.

52. The Tribunal’s determination in relation to each of the five items listed as defects in the original report may be summarised as follows, using the same numbering:

1. A claim for $12,670 can be justified.

2. This claim is rejected because no reasons were provided.

3. No amount was claim in the original report and this item was not included in the supplementary report.

4. This claim is rejected because no reasons were provided

5. This claim is rejected as no reasons were provided.

53. As the calculation of $12,670 is considered reasonable, adding the also reasonable claim for a 20% builder’s margin and 10% for GST gives $16,724.40 as the amount the Tribunal considers the owners have proved for defective work.

If so, should a work order or a money order be made?

54. As the builder did not participate in these proceedings, the Tribunal cannot be satisfied that he would carry out a work order if such an order were to be made. Further, there is nothing to indicate that the builder is licensed to carry out the work required to rectify the defective work or complete the work he contracted to do. Accordingly, the statutory preference for a work order, established in the HBA by s 48MA, has been displaced.

If a work order, what should be the wording of that order?

55. Not applicable, for the reasons indicated in relation to the previous issue.

If a money order, what amount should be awarded?

56. As indicated above, the amount the Tribunal considers should be awarded in respect of defective work is $16,724.40.

Was there damage to the owner’s property caused by the builder?

57. The original report of Mr Cavallo listed eight items but only stated an amount. Each of those items needs to be proved by evidence that establishes both (1) that the builder caused the claimed damaged (liability), and (2) the amount that should be awarded (quantum).

58. As indicated in the reasons published on 22 May 2025, the hearing was adjourned so that evidence could be provided in support of the ten items claimed in Mr Cavallo’s report (A175). That was not an invitation to either add items or increase the amounts claimed.

59. Accordingly, the Tribunal confines its assessment to the ten items in the original report of Mr Cavallo, not the twelve items in his supplementary report. Likewise, the amounts claimed are treated as being the total of $11,002.50 set out in the original report and not the claim for $22,492.80 set out in the supplementary report of Mr Cavallo, which is more than double the amount previously claimed.

60. The evidence on liability is found in (1) the first statement of Shaira Hadwani (A12 at [52f]), (2) the second statement of Sahil Hadwani (Exhibit B), (3) photos at A90-120, and (4) the statement of a neighbour, Mr Duke (A25 at [11]).

61. The evidence in support of quantum is found in the supplementary report of Mr Cavallo (C7-8).

62. Item 1 – front fence. Mr Duke said his front fence had been “impacted” by the builder’s work but did not say when or how or what was the nature of any damage. The damage was said to be evident in the photos at pages A110, A111, A113 and A116 but it is noted that A110, A113 and A116 show the same damage. As a result, the damage can be assessed by reference to A110-111.

63. The amount claim, both originally and now, is $2,500. However, the suggestion that it would take two fencers a whole day and $1,060 for materials appears excessive. From what appears in the photos, an allowance of one fencer for four hours is considered sufficient allowance. Allowing the rate claimed and the amount claimed for materials, even though it seems high, gives $1,400 for this item.

64. Item 2 – neighbour’s front fence. Since no additional evidence was provided and no additional amount was claimed beyond that claimed for item 1, this item does not require further consideration.

65. Item 3 – back fence. An amount of 1,500 was claimed but there was no supporting evidence to established liability. As a result, this claim is rejected.

66. Item 4 - broken outdoor electrical box (exposed wire). Since there is clear evidence of the damage (A114) and the amount claimed is considered reasonable, the claim for $200 that was originally made (later increased to $230) is allowed.

67. Item 5 – 2 x hose reels. Again, as there is clear evidence of the damage (A109) and the amount claimed is considered reasonable, the claim for $500 that was made, both originally and later, is allowed.

68. Item 6 – sandstone edging on front. The photos at A110 and A113 provide support for the case on liability and the amount originally claimed of $1,000, not the revised amount of $1,080, is allowed.

69. Item 7 – neighbour’s concrete edging around garden. This item is problematic for three reasons. First, because the evidence of Shaira Hadwani (A12 at [52f]) was that the neighbour had been paid for the damage caused by the builder, in which case it should only have been necessary for evidence of the amount paid to be provided. Secondly, the neighbour’s evidence did not refer to this damage. Thirdly, the recent statement of Sahil Hadwani suggested the damage that was the subject of this claim “is depicted in various photos in the previous evidence” but did not identify any of them. As was said in Benjamin & Khoury Pty Ltd v Rahme (No 4) [2023] NSWSC 1162 at [5], the Tribunal is not required to go “fossicking and ferreting” through the evidence to find a party’s case.

70. In those circumstances, the owners have not proved their claim on liability. As a result, it is not necessary to consider the amount claimed, originally $500, later swollen to $1,360. This claim is rejected.

71. Item 8 – front yard shared between neighbours. Photos said to support this item were at A94, A112 and A115 but the photos at A94 and A115 show the same damage. That amount included an allowance for 70m² of turf, but it is difficult to see had that area was damaged but for the evidence of Mr Duke, the neighbour, who suggested “the majority” of his front lawn was destroyed. However, there was no evidence of either how much he paid to fix that damage or how much the owners paid him, which the Tribunal is entitled to expect given the evidence of the evidence of Shaira Hadwani (A12 at [52f]) was that the neighbour had been paid for the damage caused by the builder. The amount claimed, both originally and now, is $4,500 and that amount is allowed.

72. Item 9 – front yard drainage pipes. While $500 was originally claimed, and that amount was later increased to $730, there is no supporting evidence on liability. As a result, this claim is rejected.

73. Item 10 – site pegs were removed. A claim for $302.50 was recently increased to $450. There was no supporting evidence on the issue of liability and no reason(s), process of reasoning or supporting document for the amount claimed. In such circumstances, this claim is rejected. In relation to items such as items 9 and 10, it is noted that the Tribunal provided the owners with an opportunity to address the deficiencies in their original evidence.

74. Item 11 – waterline tiles on the pool. For the reasons indicated above, the Tribunal considers it would be procedurally unfair to permit the owners to add this claim. No amount is allowed for this item.

75. Item 12 – gas main unit. The position for this item is the same as for item 11.

If so, what amount can the owners entitled to recover in respect of that damage?

76. Adding the amounts allowed for those 12 items, as set out in Appendix A, gives $7,700. When 20% is added for builder’s margin and 10% for GST, the amount the Tribunal considers reasonable to award for those claims is $10,164.00.

Can the applicants recover the amount paid to remove a skip bin?

77. By reason of the builder having a skip bin placed on site, it was the builder’s obligation to remove it. Due to (1) the builder having refused to return to the site on 12 June 2024, (2) the builder having not paid for the removal of that skip bin, and (3) the contracts between the owners and the builder having been terminated on 2 July 2024, the owners are entitled to recover, as part of their claim for damages, the amount of $1,485.00 that was paid by them on 15 July 2024 to have that skip bin removed. The Tribunal the lay supporting evidence although it would have been preferable for a supporting document to be provided.

Summary

78. In assessing the owners’ claims in these proceedings, the Tribunal’s approach has been to avoid both (1) adopting the owners’ claims without any scrutiny, and (2) acting as the builder’s advocate in his absence. The role of the Tribunal, to assess a reasonable amount for the claims of any applicant, applying accepted principles to the available evidence, should be the same regardless of whether the respondent is present or absent.

79. The amounts (1) claimed at the hearing on 22 May 2025, (2) claimed at the hearing on 4 June 2025, and (3) awarded are set out in Appendix B. As appears from that table, and for the reasons indicated above, the Tribunal considers the owners are entitled to be awarded damages of $116,874.64.

Costs

80. In the Civil and Administrative Tribunal Act2013 (NSW), the effect of s 60 is that each party is to bear their own costs unless there are special circumstances which warrant an order for costs. However, s 35 of that Act operates to make s 60 subject to r 38 of the Rules which provides as follows:

(1)   This rule applies to proceedings for the exercise of functions of the Tribunal that are allocated to the Consumer and Commercial Division of the Tribunal.

(2)   Despite section 60 of the Act, the Tribunal may award costs in proceedings to which this rule applies even in the absence of special circumstances warranting such an award if:

(a)   the amount claimed or in dispute in the proceedings is more than $10,000 but not more than $30,000 and the Tribunal has made an order under clause 10(2) of Schedule 4 to the Act in relation to the proceedings, or

(b)   the amount claimed or in dispute in the proceedings is more than $30,000.

81. When rule 38 applies there is a general discretion to award costs and it is well established, by decisions such as News v Cotes [2019] NSWCATAP 186, Bonita vShen [2016] NSWCATAP 159 and Thompson v Chapman [2016] NSWCATAP 6, that:

1. the starting point is that the usual order for costs should be in favour of the successful party, and

2. the award is not to punish the unsuccessful party but to compensate the successful party for the costs incurred in the proceedings, but

3. departure from the usual order is permissible if the circumstances favour that course of action.

82. Simply stated, when rule 38 applies it is not necessary to establish special circumstances and the usual order is that costs follow the event (ie follow the outcome of the case) unless there is disentitling behaviour by the successful party: Latoudis v Casey [1990] HCA 59, Oshlak v Richmond River Council [1998] HCA 11.

83. For completeness, it is noted that the owners’ claims for $2,750 and $3,300 for the cost of Mr Cavallo’s reports are claims for costs, not damages.

ORDERS

84. The following orders are made:

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.

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Appendix A

Claims for damage to property

Item	Initial claim	Final claim	Amount allowed
1	2,500.00	2,500.00	1,400.00
2	0	0	0
3	1,000.00	1,500.00	0
4	200.00	230.00	200.00
5	500.00	500.00	500.00
6	1,000.00	1,080.00	1,000.00
7	500.00	1,360.00	0
8	4,500.00	4,500.00	4,500.00
9	500.00	730.00	0
10	302.50	450.00	0
11	0	3,560.00	0
12	0	630.00	0
Sub-total	11,002.50	17,040.00	7,600.00
Add margin	0	3,408.00	1,520.00
Add GST	0	2,044.80	912.00
Total	$11,002.50	$22,492.80	$10,032.00

Appendix B

Summary

Description	Initial claim	Final claim	Amount allowed
Incomplete work	40,968.10	115,638.60	104,074.74
Defective work	27,630.00	40,035.60	16,724.40
Damage to property	11,002.50	22,492.80	10,032.00
Skip bin removal	1,485.00	1,485.00	1,485.00
Cost of report(s)	2,750.00	6,050.00	0
Sub-total	$83,835.60	185,702.00	132,316.14
Unpaid balance	15,441.50	15,441.50
Total	$170,260.50	$116,874.64

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 25 September 2025