Harding v Horticultural Holdings Pty Ltd - [2022] NSWCATCD 22

Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: Harding v Horticultural Holdings Pty Ltd [2022] NSWCATCD 22
Hearing dates: 20 January 2022
Date of orders: 31 January 2022
Decision date: 31 January 2022
Jurisdiction: Consumer and Commercial Division
Before: Graham Ellis SC, Senior Member
Decision:
1.   The respondent is to pay the applicants $84,340.87 immediately.
2.   Any documents and/or submissions upon which the applicants wish to rely in relation to costs are to be provided to the Tribunal and the respondent on or before 14 February 2022.
3.   Any documents and/or submissions upon which the respondent wishes to rely in response are to be provided to the Tribunal and the applicants on or before 28 February 2022.
4.   Any submissions from the applicants in reply are to be provided to the Tribunal and the respondent on or before 14 March 2022.
5.   Leave is granted for any such submissions to be provided electronically to the other party and the Tribunal.
6.   Any such submissions are to indicate whether it is agreed that the Tribunal should dispense with a hearing on the question of costs.

Catchwords:
BUILDING AND CONSTRUCTION - Defective work - Repair or replacement - Work order or money order

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

Cases Cited:
Bellgrove v Eldridge [1954] HCA 36
Brooks v Gannon Constructions Pty Limited [2017] NSWCATCD 12
Cachia v Haines [1994] HCA 14
Galdona v Peacock [2017] NSWCATAP 64
Hadley v Baxendale (1854) 9 Ex 341
Haines v Bendall [1991] HCA 15
Kurmond Homes Pty Ltd v Marsden [2018] NSWCATAP 23
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305
Sauvage v Cleardon [2017] NSWCATAP 47
Taylor v Johnson [1983] HCA 5

Texts Cited:
Nil

Category: Principal judgment
Parties: Michael Harding (First Applicant)
Polly Harding (Second Applicant)
Horticultural Holdings Pty Ltd (Respondent)
Representation: First Applicant (Self-represented)
Second Applicant (Self-represented)
Mr and Mrs Dwyer (Respondent)

File Number(s): HB 21/25869
Publication restriction: Nil

REASONS FOR DECISION

Outline

The applicants (the Owners) commenced proceedings against the respondent (the Builder), claiming damages and costs based on allegations of defective building work in relation to the supply and installation of a kitchen at their home in Newport.
Having considered the evidence and submissions, the Tribunal was satisfied that there was defective work, that removal and replacement was warranted, and that a money order rather than a work order should be made. As a result, the Tribunal determined that the Builder should pay the Owners $84,340.87.

History of the proceedings

After the application was lodged on 10 June 2021, a directions hearing was held on 29 July 2021. On that occasion, directions were made for the provision of the documents upon which the parties wished to rely at the hearing and on 1 September 2021 an extension of time was granted for the provision of those documents. On 3 December 2021 an application for the 20 January 2022 hearing to…

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: [2022] NSWCATCD 22
Decision Date: 31 January 2022

CaseChat Overview and Summary

Harding brought a claim against Horticultural Holdings Pty Ltd regarding defective work performed by the respondent in the construction of a building. The matter was heard in the Construction Industry Disputes Resolution Tribunal, which has jurisdiction to hear disputes in the building and construction industry in New South Wales. The primary issue before the Tribunal was whether the respondent was obligated to repair or replace defective work, or to provide a monetary compensation to the applicant. The Tribunal found that the respondent had not fulfilled their obligations under the contract to perform the work to an acceptable standard, and that the applicant was entitled to a monetary compensation for the defective work. The Tribunal ordered the respondent to pay the applicant $84,340.87 immediately. The Tribunal also set out a schedule for the provision of documents and submissions in relation to the costs of the proceedings. The Tribunal granted leave for any such submissions to be provided electronically, and indicated that the parties should indicate whether they agreed that the Tribunal should dispense with a hearing on the question of costs. This decision highlights the importance of ensuring that building and construction work is performed to an acceptable standard, and the consequences for the contractor if they fail to do so.

Orders

Orders of the court

1. The respondent is to pay the applicants $84,340.87 immediately.

2. Any documents and/or submissions upon which the applicants wish to rely in relation to costs are to be provided to the Tribunal and the respondent on or before 14 February 2022.

3. Any documents and/or submissions upon which the respondent wishes to rely in response are to be provided to the Tribunal and the applicants on or before 28 February 2022.

4. Any submissions from the applicants in reply are to be provided to the Tribunal and the respondent on or before 14 March 2022.

5. Leave is granted for any such submissions to be provided electronically to the other party and the Tribunal.

6. Any such submissions are to indicate whether it is agreed that the Tribunal should dispense with a hearing on the question of costs.

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:	Harding v Horticultural Holdings Pty Ltd [2022] NSWCATCD 22
Hearing dates:	20 January 2022
Date of orders:	31 January 2022
Decision date:	31 January 2022
Jurisdiction:	Consumer and Commercial Division
Before:	Graham Ellis SC, Senior Member
Decision:	1. The respondent is to pay the applicants $84,340.87 immediately. 2. Any documents and/or submissions upon which the applicants wish to rely in relation to costs are to be provided to the Tribunal and the respondent on or before 14 February 2022. 3. Any documents and/or submissions upon which the respondent wishes to rely in response are to be provided to the Tribunal and the applicants on or before 28 February 2022. 4. Any submissions from the applicants in reply are to be provided to the Tribunal and the respondent on or before 14 March 2022. 5. Leave is granted for any such submissions to be provided electronically to the other party and the Tribunal. 6. Any such submissions are to indicate whether it is agreed that the Tribunal should dispense with a hearing on the question of costs.
Catchwords:	BUILDING AND CONSTRUCTION - Defective work - Repair or replacement - Work order or money order
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Home Building Act 1989 (NSW)
Cases Cited:	Bellgrove v Eldridge [1954] HCA 36 Brooks v Gannon Constructions Pty Limited [2017] NSWCATCD 12 Cachia v Haines [1994] HCA 14 Galdona v Peacock [2017] NSWCATAP 64 Hadley v Baxendale (1854) 9 Ex 341 Haines v Bendall [1991] HCA 15 Kurmond Homes Pty Ltd v Marsden [2018] NSWCATAP 23 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305 Sauvage v Cleardon [2017] NSWCATAP 47 Taylor v Johnson [1983] HCA 5
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Michael Harding (First Applicant) Polly Harding (Second Applicant) Horticultural Holdings Pty Ltd (Respondent)
Representation:	First Applicant (Self-represented) Second Applicant (Self-represented) Mr and Mrs Dwyer (Respondent)
File Number(s):	HB 21/25869
Publication restriction:	Nil