Hughes v Midson

[2023] NSWCATCD 168

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Hughes v Midson [2023] NSWCATCD 168

Hearing dates:

20 July 2023

Date of orders:

01 December 2023

Decision date:

01 December 2023

Jurisdiction:

Consumer and Commercial Division

Before:

R. Alkadamani, Senior Member

Decision:

1. Dismiss proceedings HB 22/29183.

2. Order that Tony Joseph Hughes pay Eryn Louise Midson the sum of $25,225.68 within 14 days.

3. Any party seeking a costs order is to file and serve by 12 January 2024 written submissions not exceeding 5 pages, with references to the evidence relied identified in those submissions.

4. Any party that intends to oppose an application for a costs order is to file and serve by 2 February 2024 written submissions in response not exceeding 5 pages, with references to the evidence relied on identified in those submissions.

5. Reserve all question of costs, including whether to dispense with a hearing as to costs.

6. Otherwise dismiss proceedings HB 22/30007.

Catchwords:

BUILDING AND CONSTRUCTION – Home building – provisional sums contract – oral variations

BUILDING AND CONSTRUCTION – Home building – defects – work order or monetary remedy

Legislation Cited:

Home Building Act, 1989 (NSW)

Cases Cited:

Culina v Timilty Constructins Pty Ltd [2022] NSWCATCD 109

Xu v Jinhong Design & Constructions Pty Ltd [2011] NSWCA 277

Texts Cited:

None

Category:

Principal judgment

Parties:

HB 22/29183
Tony Hughes (applicant)
Eryn Midson (respondent)
HB 22/30007
Eryn Midson (applicant)
Tony Hughes (respondent)

Representation:

Whiteley, Ironside & Shillington Pty Ltd, solicitors for Eryn Midson
Tony Hughes, self-represented

File Number(s):

2022/00426705, 2022/00418641 (Previously HB 22/29183, HB 22/30007)

Publication restriction:

None

REASONS FOR DECISION

1. Mr Hughes is a builder (the builder). Ms Midson is the owner (the homeowner) of a residential home located at ** Lawson Crescent, Orange (the Property). On 22 December 2022 the builder and the homeowner entered into a written contract for the builder to undertake residential building work at the Property. Disputes have arisen between the parties and these reasons for decision deal with two applications before the Tribunal concerning those disputes.

2. In application HB 22/29183 the builder seeks a money order against the homeowner for payments alleged to be due under the home building contract.

3. In application HB 22/30007 the homeowner seeks money orders by way of compensation for alleged defective work performed by the builder.

4. The applications were heard together on 20 July 2023. During the hearing the builder represented himself and Mr Evans, solicitor, represented the homeowner.

5. At the conclusion of the hearing directions were made for the filing of written submissions.

Evidence

6. The parties prepared and tendered a Joint Tender Book, which was marked exhibit 1. Exhibit 1 contained, amongst other documents:

1. an affidavit of the builder dated 13 April 2022;

2. an affidavit of the homeowner dated 15 July 2022;

3. a statement by the builder dated 21 December 2022;

4. an expert report by Westinspect dated 2 August 2022;

5. an expert report by Barnson dated 1 January 2023;

6. an expert report by…