Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Hartley v McRae [2018] NSWCATCD 31 Hearing dates: 21 and 22 March 2018 Date of orders: 20 July 2018 Decision date: 20 July 2018 Jurisdiction: Consumer and Commercial Division Before: D. Goldstein. Senior Member Decision: (1) In HB 16/54314 the parties have 21 days from the date of these Reasons for Decision to file consent work orders in the Registry of the Tribunal that deal with the defective work items previously agreed and those found in the owners’ favour in connection with defective work. The consent orders must contain a description of the defective work item with a concise scope of the rectification work required. The orders should have a date by which the rectification work must commence and a completion date.
(2) If the parties fail to file consent work orders in the Registry of the Tribunal, either party has liberty to seek the re-listing of the proceedings in order that the Tribunal may make the necessary work orders.
(3) In HB 16/54314 Greg McRae must pay Janette Hartley and Terry Hartley the sum of $11,345.99 immediately.
(4) In HB 17/37291 Janette Hartley and Terry Hartley must pay Greg McRae the sum of $13,841.32 immediately.
(5) The parties have leave to bring an application for costs.
(6) Any costs application must be lodged in the Tribunal and served on the costs respondent within 14 days of the date of this order either attaching or referring to the documents relied upon in support of the application.
(7) The costs respondent will have 14 days after the date it receives the application to lodge in the Tribunal and serve on the costs applicant its submissions, if any, in response to the cost applicant’s costs application, such submissions either attaching or referring to the documents relied upon.
(8) The cost applicant will have 14 days after the date it receives the cost respondent’s submissions to lodge in the Tribunal and serve on the costs respondent its submissions, if any, in reply, such submissions either attaching or referring to the documents relied upon.
(9) The parties must state in their submissions whether they consent to the costs application being determined on the basis of the parties written submissions and attached documents, if any, without the need for a hearing.
(10) Subject to the parties’ submissions, the Tribunal will determine any costs application on the basis of the papers lodged in the Tribunal.Catchwords: Section 48MA of the Home Building Act 1989, Work orders, Prime cost items, undocumented variations Legislation Cited: Home Building Act 1989 Cases Cited: Aerial Advertising Co v Batchelors Peas Ltd (Manchester) [1938] 2 All ER 788
Deacon v National Strategic Constructions Pty Ltd; National Strategic Constructions Pty Ltd v Deacon [2017] NSWCATAP 185
Goodacre v Trinder Alpine Constructions Pty Ltd [2013] NSWCCT 124
Liebe v Molloy (1906) 4 CLR
MacFayden and Anor v G Tadrosse [2014] NSWCATCD 194
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
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- AGLC
- Hartley v McRae [2018] NSWCATCD 31
- Case
- [2018] NSWCATCD 31
- Decision Date
CaseChat Overview and Summary
The key legal issues revolved around the obligations of the builder to complete the work in a good and workmanlike manner, the interpretation of the term 'prime cost items' under the Act, and the validity of undocumented variations. The Tribunal had to determine whether the builder had met his contractual obligations, the extent to which the homeowners were entitled to compensation for defects, and whether the undocumented variations were enforceable.
The Tribunal concluded that the builder had not completed the work to the required standard, resulting in defects that necessitated rectification. It found that some of the prime cost items were not properly installed and that the undocumented variations were not adequately documented to be enforceable. The Tribunal ordered the builder to pay the homeowners $11,345.99 for the defective work, while the homeowners were ordered to pay the builder $13,841.32 for work completed. Additionally, the Tribunal mandated that consent work orders be filed within 21 days to outline the rectification work required and its timelines. If the parties failed to comply, either party could seek a re-listing of the proceedings.
The final orders included specific timelines for filing consent work orders, payment of sums between the parties, and procedures for any subsequent costs applications. The Tribunal also granted the parties leave to bring an application for costs, with detailed procedures for lodging and responding to such applications, and an option for the parties to agree on determining the costs application on the basis of written submissions and documents without a hearing.
Orders
Orders of the court
(1) In HB 16/54314 the parties have 21 days from the date of these Reasons for Decision to file consent work orders in the Registry of the Tribunal that deal with the defective work items previously agreed and those found in the owners’ favour in connection with defective work. The consent orders must contain a description of the defective work item with a concise scope of the rectification work required. The orders should have a date by which the rectification work must commence and a completion date.
(2) If the parties fail to file consent work orders in the Registry of the Tribunal, either party has liberty to seek the re-listing of the proceedings in order that the Tribunal may make the necessary work orders.
(3) In HB 16/54314 Greg McRae must pay Janette Hartley and Terry Hartley the sum of $11,345.99 immediately.
(4) In HB 17/37291 Janette Hartley and Terry Hartley must pay Greg McRae the sum of $13,841.32 immediately.
(5) The parties have leave to bring an application for costs.
(6) Any costs application must be lodged in the Tribunal and served on the costs respondent within 14 days of the date of this order either attaching or referring to the documents relied upon in support of the application.
(7) The costs respondent will have 14 days after the date it receives the application to lodge in the Tribunal and serve on the costs applicant its submissions, if any, in response to the cost applicant’s costs application, such submissions either attaching or referring to the documents relied upon.
(8) The cost applicant will have 14 days after the date it receives the cost respondent’s submissions to lodge in the Tribunal and serve on the costs respondent its submissions, if any, in reply, such submissions either attaching or referring to the documents relied upon.
(9) The parties must state in their submissions whether they consent to the costs application being determined on the basis of the parties written submissions and attached documents, if any, without the need for a hearing.
(10) Subject to the parties’ submissions, the Tribunal will determine any costs application on the basis of the papers lodged in the Tribunal.
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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