Huynh v Devine Building Pty Ltd

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Huynh v Devine Building Pty Ltd [2016] NSWCATCD 93
Hearing dates:	11 August 2016
Decision date:	01 December 2016
Jurisdiction:	Consumer and Commercial Division
Before:	D A C Robertson, Senior Member
Decision:	1. Application dismissed.  2. The applicant is to pay the respondents’ costs as agreed or assessed.
Catchwords:	CONTRACTS – Home Building Act – Statutory warranties – time limits – whether complaint to Department of Fair Trading “enforcement” – obtaining work orders from Department of Fair Trading not enforcement of warranties for purposes of s18E Home Building Act – waterproofing not shown to be defective
Legislation Cited:	Home Building Act 1989 (NSW)
Cases Cited:	Honeywood as Executrix of Honeywood v Murray (2006) 67 NSWLR 466 Bardon v Occhiuto Enterprises [2016] NSWCATAP 191
Category:	Principal judgment
Parties:	Fiona Huynh – applicant Mark Devine and Devine Building Pty Ltd - respondents
Representation:	Applicant: in person Respondents: R Sidey, solicitor
File Number(s):	HB 16/01166
Publication restriction:	Nil

reasons for decision

1. This is an application for compensation under the Home Building Act 1989 (NSW) (“HBA”) in respect of allegedly defective home building work carried out by one or other of the respondents on the applicant’s home. The applicant appeared in person. The respondents were represented by Mr Sidey, solicitor.

2. The dispute concerns building work carried out on two bathrooms and a laundry within the applicant’s house at Greystanes. The work was “residential building work” as defined in the HBA. The claim in relation to the work is a “building claim” as defined in the HBA and, subject to a question addressed below whether the proceedings were commenced within the time limits laid down in the HBA, the Tribunal has jurisdiction to determine the claim pursuant to s48K of the HBA.

3. By her original application the applicant claimed the sum of $33,106 from the first-named respondent in respect of 22 items set out in a Scott Schedule filed with the application. The application was accompanied by an expert report prepared by Mr Howard Ryan of HK Ryan & Associates, a licensed builder and property and construction consultant. Mr Ryan also prepared the Scott Schedule.

4. The first respondent disputed that he was responsible for the building work. The first respondent asserted that the work was carried out by the second named respondent, a company of which the first respondent is the director.

5. After initially declining to do so when it was suggested at the initial directions hearing, the applicant ultimately applied to have the second named respondent joined as a respondent. Nevertheless, the applicant consistently maintained that she had contracted with the first respondent and not the second respondent.

6. At a directions hearing on 28 June 2016 the applicant was given leave to amend her application “on the basis that the applicant does not propose to lead further evidence in support”.

7. By the amended application the applicant increased her claim to $118,223.16 being the cost of fully renovating both bathrooms…