Iftikhar v Rockwall Homes Pty Ltd - [2023] NSWCATCD 44

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Iftikhar v Rockwall Homes Pty Ltd [2023] NSWCATCD 44
Hearing dates: 23 and 24 November 2022
Date of orders: 04 April 2023 [amended 13 April 2023]
Decision date: 04 April 2023
Jurisdiction: Consumer and Commercial Division
Before: D Ziegler, Senior Member
Decision:
Pursuant to Section 63 of the Civil and Administrative Tribunal Act 2013, orders published on 12 April 2023 are amended as follows:
1.   The respondent is to pay the applicant $129,863.41 within 14 days of the date of these orders.
2.   If there is a costs application, the costs applicant is to file and serve submissions and documents on the costs application by 14 days from the date of these orders.
3.   The costs respondent is to file and serve submissions and documents on the costs application by 28 days from the date of these orders.
4.   The costs applicant is to file and serve costs submissions in reply by 35 days from the date of these orders.
5. The costs submissions of the parties are to state whether the parties seek an oral hearing on the issue of costs, or consent to the costs application being determined on the papers in accordance with s 50 (2) of the Civil and Administrative Tribunal Act 2013 (NSW).
6.   The Tribunal may determine it appropriate to deal with any costs application on the papers and without a further oral hearing.

Catchwords:
BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – Defective building work – work order or money order – assessment of damages.
PRACTICE AND PROCEDURE – transfer of proceedings to Court – extension of time for lodgement of documents.

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

Cases Cited:
Culina v Timilty Constructions PL [2022] NSWCATCD 109
Deacon v National Strategic Constructions Pty Ltd; National Strategic Constructions Pty Ltd v Deacon [2017] NSWCATAP 185
Ideal Waterproofing Pty Ltd v Buildcorp Australia Pty Ltd & Ors [2004] NSWSC 765
Kurmond Homes Pty Ltd v Marsden [2018] NSWCATAP 23
Leung v Alexakis [2018] NSWCATAP 11
Mesiha v Murrell [2017] NSWCATAP 1
Robinson v Hindmarsh Construction Australia Pty Ltd [2021] NSWCATAP 51

Texts Cited:
Nil

Category: Principal judgment
Parties: Junaid Iftikhar (Applicant)
Rockwall Homes Pty Ltd (Respondent)
Representation:
Counsel:

T Davie (Applicant)
N Li (Respondent)

Solicitors:
Maccallum Lawyers (Applicant)
One Group Legal (Respondent)

File Number(s): HB21/37042
Publication restriction: Nil

REASONS FOR DECISION

This is a residential building dispute involving construction of a new dwelling in Kellyville, New South Wales.
On or about 19 April 2016 the applicant Mr Iftikhar (the homeowner) and the respondent Rockwall Homes Pty Ltd (the builder) entered a contract to perform residential building works (the Contract). The Contract price stipulated in the Contract was $1,000,000.
The builder issued a notice of practical completion on or about 14 May 2018.
The homeowner and his family moved into the premises in about July 2018.
On 30 August 2019 the builder issued a final…

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: [2023] NSWCATCD 44
Decision Date: 04 April 2023

CaseChat Overview and Summary

The matter before the Court involved Iftikhar, the applicant, and Rockwall Homes Pty Ltd, the respondent. The dispute pertained to damages for defective building work conducted by the respondent in contravention of the Home Building Act 1989 (NSW). The applicant sought either a work order or a monetary compensation for the deficiencies in the construction work. The proceedings were initially handled by the Civil and Administrative Tribunal and were subsequently transferred to the Court.

The legal issues the Court needed to address included determining whether the respondent's building work was defective and whether the applicant was entitled to either a work order to rectify the defects or a monetary compensation. Additionally, the Court needed to assess the appropriate amount of damages to be awarded to the applicant if the respondent was found liable.

The Court found that the respondent's building work was indeed defective, violating the statutory provisions under the Home Building Act. As a result, the Court awarded the applicant a monetary sum of $129,863.41, which represented the cost of rectifying the defects. The Court also ordered the respondent to pay this amount within 14 days of the orders. Furthermore, the Court outlined the procedural steps for any costs application that might arise from the proceedings, specifying the timelines for filing and serving the necessary documents and submissions.

The final orders of the Court mandated the respondent to pay the applicant $129,863.41 within 14 days from the date of the orders. The Court also provided detailed instructions for the procedural steps to be followed in the event of a costs application, including the deadlines for filing and serving the necessary documents and submissions. The Court maintained the flexibility to decide on the costs application either on the papers or through an oral hearing, based on the consent of the parties or the appropriateness of the case.

Orders

Orders of the court

Pursuant to Section 63 of the Civil and Administrative Tribunal Act 2013, orders published on 12 April 2023 are amended as follows:

1. The respondent is to pay the applicant $129,863.41 within 14 days of the date of these orders.

2. If there is a costs application, the costs applicant is to file and serve submissions and documents on the costs application by 14 days from the date of these orders.

3. The costs respondent is to file and serve submissions and documents on the costs application by 28 days from the date of these orders.

4. The costs applicant is to file and serve costs submissions in reply by 35 days from the date of these orders.

5. The costs submissions of the parties are to state whether the parties seek an oral hearing on the issue of costs, or consent to the costs application being determined on the papers in accordance with s 50 (2) of the Civil and Administrative Tribunal Act 2013 (NSW).

6. The Tribunal may determine it appropriate to deal with any costs application on the papers and without a further oral hearing.

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:	Iftikhar v Rockwall Homes Pty Ltd [2023] NSWCATCD 44
Hearing dates:	23 and 24 November 2022
Date of orders:	04 April 2023 [amended 13 April 2023]
Decision date:	04 April 2023
Jurisdiction:	Consumer and Commercial Division
Before:	D Ziegler, Senior Member
Decision:	Pursuant to Section 63 of the Civil and Administrative Tribunal Act 2013, orders published on 12 April 2023 are amended as follows: 1. The respondent is to pay the applicant $129,863.41 within 14 days of the date of these orders. 2. If there is a costs application, the costs applicant is to file and serve submissions and documents on the costs application by 14 days from the date of these orders. 3. The costs respondent is to file and serve submissions and documents on the costs application by 28 days from the date of these orders. 4. The costs applicant is to file and serve costs submissions in reply by 35 days from the date of these orders. 5. The costs submissions of the parties are to state whether the parties seek an oral hearing on the issue of costs, or consent to the costs application being determined on the papers in accordance with s 50 (2) of the Civil and Administrative Tribunal Act 2013 (NSW). 6. The Tribunal may determine it appropriate to deal with any costs application on the papers and without a further oral hearing.
Catchwords:	BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – Defective building work – work order or money order – assessment of damages. PRACTICE AND PROCEDURE – transfer of proceedings to Court – extension of time for lodgement of documents.
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) Home Building Act 1989 (NSW)
Cases Cited:	Culina v Timilty Constructions PL [2022] NSWCATCD 109 Deacon v National Strategic Constructions Pty Ltd; National Strategic Constructions Pty Ltd v Deacon [2017] NSWCATAP 185 Ideal Waterproofing Pty Ltd v Buildcorp Australia Pty Ltd & Ors [2004] NSWSC 765 Kurmond Homes Pty Ltd v Marsden [2018] NSWCATAP 23 Leung v Alexakis [2018] NSWCATAP 11 Mesiha v Murrell [2017] NSWCATAP 1 Robinson v Hindmarsh Construction Australia Pty Ltd [2021] NSWCATAP 51
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Junaid Iftikhar (Applicant) Rockwall Homes Pty Ltd (Respondent)
Representation:	Counsel: T Davie (Applicant) N Li (Respondent) Solicitors: Maccallum Lawyers (Applicant) One Group Legal (Respondent)
File Number(s):	HB21/37042
Publication restriction:	Nil