Kapeller v BH Australia Pty Ltd - [2020] NSWCATCD 20

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Kapeller v BH Australia Pty Ltd [2020] NSWCATCD 20
Hearing dates: On the papers
Date of orders: 8 January 2020
Decision date: 08 January 2020
Jurisdiction: Consumer and Commercial Division
Before: D Goldstein, Senior Member
Decision:
The Notice of Order issued on 8 January 2020 is amended under Section 63 of the Civil and Administrative Tribunal Act 2013, and should read as follows:
1. A hearing in respect of Applications HB 19/0928 & HB 19/09300 is dispensed with under section 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).
2. BH Australia Constructions Pty Ltd must pay Phillip Kapeller and Rachael Cesnik the sum of $191,336.00 immediately.
3. In the event that a party wishes to bring a costs application, the costs application must be lodged in the Tribunal and served on the costs respondent within 14 days of the date of the orders in these proceedings either attaching or referring to the documents relied upon in support of the application.
4. The costs respondent will have 14 days after the date they or it receives the application to lodge in the Tribunal and serve on the costs applicant their or its submissions, if any, in response to the cost applicant’s costs application, such submissions either attaching or referring to the documents relied upon.
5. The cost applicant will have 14 days after the date they or it receives the cost respondent’s submissions to lodge in the Tribunal and serve on the costs respondent their or its submissions, if any, in reply, such submissions either attaching or referring to the documents relied upon.
6. The parties must state in their submissions whether or not 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.
7. Subject to the parties’ submissions, the Tribunal will determine any costs application on the basis of the papers lodged in the Tribunal.

Catchwords:
BUILDING AND CONSTRUCTION — Home Building — Repudiation — Failing to proceed with due diligence

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

Cases Cited:
BH Australia Constructions Pty Ltd v Kapeller [2019] NSWSC 1086
DB Homes Australia Pty Limited v Kes [2019] NSWCATAP 221
eMove Pty Ltd v Dickinson [2015] NSWCATAP 94
Hometeam Constructions Pty Ltd v McCauley [2005] NSWCA 303
Kapeller v BH Australia Constructions Pty Ltd [2019] NSWCATAP 40
Koompahtoo Local Aboriginal Land Council & Anor v Sanpine Pty Ltd [2007] HCA 61; (2007) 233 CLR 115
Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd (1938) 38 SR (NSW) 632

Texts Cited:
Nil

Category: Principal judgment
Parties: Phillip Kapeller (First Applicant)
Rachael Cesnik (Second Applicant)
Respondent: BH Australia Pty Ltd (Respondent)
Representation:
Counsel:
P Williams (Respondent)
Solicitors:
DWF (Australia) (Respondent)

File Number(s): HB 19/0928 & HB 19/09300
Publication restriction: Nil

REASONS FOR DECISION

These proceedings have a complicated history to which I…

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.

Keep reading for free

Create a free CaseChat account to read Kapeller v BH Australia Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] NSWCATCD 20
Decision Date: 08 January 2020

CaseChat Overview and Summary

The Civil and Administrative Tribunal in New South Wales heard a dispute between Phillip Kapeller and Rachael Cesnik, who had engaged BH Australia Constructions Pty Ltd to construct a home. The plaintiffs claimed that BH Australia Pty Ltd repudiated the contract, citing a lack of due diligence in continuing with the construction project. The defendants contested this claim, arguing that the plaintiffs had failed to provide necessary information and approvals for the project to proceed. The tribunal was tasked with determining whether the defendants had repudiated the contract and, if so, to what extent the plaintiffs were entitled to damages.

The primary legal issue before the tribunal was whether BH Australia Pty Ltd had repudiated the contract by failing to proceed with due diligence. The tribunal considered the conduct of both parties and whether the defendants' actions amounted to a refusal to perform their contractual obligations. The tribunal also had to assess the extent of the plaintiffs' entitlement to damages, if any, in light of the defendants' repudiation. The tribunal examined the communications between the parties, the progress of the construction, and the reasons for any delays.

In its decision, the tribunal found that BH Australia Pty Ltd had indeed repudiated the contract by failing to proceed with due diligence. The tribunal accepted the plaintiffs' evidence that the defendants had not acted with the necessary urgency and had failed to address critical issues that impacted the project's progress. The tribunal determined that the plaintiffs were entitled to damages, and calculated the amount owed to them based on the evidence presented. The tribunal ordered that BH Australia Pty Ltd must immediately pay the plaintiffs $191,336.00. The tribunal also outlined the process for any subsequent costs applications, specifying that they should be dealt with on the papers, subject to the parties' consent to avoid a hearing.

The tribunal issued amended orders under Section 63 of the Civil and Administrative Tribunal Act 2013, dispensing with a hearing for the specified applications and setting out the procedure for any future costs applications. The tribunal mandated that BH Australia Pty Ltd pay the plaintiffs immediately and detailed the timeline and requirements for submitting and responding to costs applications. The tribunal's decision and orders provided clarity on the parties' rights and responsibilities moving forward.

Orders

Orders of the court

The Notice of Order issued on 8 January 2020 is amended under Section 63 of the Civil and Administrative Tribunal Act 2013, and should read as follows:

1. A hearing in respect of Applications HB 19/0928 & HB 19/09300 is dispensed with under section 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).

2. BH Australia Constructions Pty Ltd must pay Phillip Kapeller and Rachael Cesnik the sum of $191,336.00 immediately.

3. In the event that a party wishes to bring a costs application, the costs application must be lodged in the Tribunal and served on the costs respondent within 14 days of the date of the orders in these proceedings either attaching or referring to the documents relied upon in support of the application.

4. The costs respondent will have 14 days after the date they or it receives the application to lodge in the Tribunal and serve on the costs applicant their or its submissions, if any, in response to the cost applicant’s costs application, such submissions either attaching or referring to the documents relied upon.

5. The cost applicant will have 14 days after the date they or it receives the cost respondent’s submissions to lodge in the Tribunal and serve on the costs respondent their or its submissions, if any, in reply, such submissions either attaching or referring to the documents relied upon.

6. The parties must state in their submissions whether or not 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.

7. 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

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:	Kapeller v BH Australia Pty Ltd [2020] NSWCATCD 20
Hearing dates:	On the papers
Date of orders:	8 January 2020
Decision date:	08 January 2020
Jurisdiction:	Consumer and Commercial Division
Before:	D Goldstein, Senior Member
Decision:	The Notice of Order issued on 8 January 2020 is amended under Section 63 of the Civil and Administrative Tribunal Act 2013, and should read as follows: 1. A hearing in respect of Applications HB 19/0928 & HB 19/09300 is dispensed with under section 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). 2. BH Australia Constructions Pty Ltd must pay Phillip Kapeller and Rachael Cesnik the sum of $191,336.00 immediately. 3. In the event that a party wishes to bring a costs application, the costs application must be lodged in the Tribunal and served on the costs respondent within 14 days of the date of the orders in these proceedings either attaching or referring to the documents relied upon in support of the application. 4. The costs respondent will have 14 days after the date they or it receives the application to lodge in the Tribunal and serve on the costs applicant their or its submissions, if any, in response to the cost applicant’s costs application, such submissions either attaching or referring to the documents relied upon. 5. The cost applicant will have 14 days after the date they or it receives the cost respondent’s submissions to lodge in the Tribunal and serve on the costs respondent their or its submissions, if any, in reply, such submissions either attaching or referring to the documents relied upon. 6. The parties must state in their submissions whether or not 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. 7. Subject to the parties’ submissions, the Tribunal will determine any costs application on the basis of the papers lodged in the Tribunal.
Catchwords:	BUILDING AND CONSTRUCTION — Home Building — Repudiation — Failing to proceed with due diligence
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) Home Building Act 1989 (NSW)
Cases Cited:	BH Australia Constructions Pty Ltd v Kapeller [2019] NSWSC 1086 DB Homes Australia Pty Limited v Kes [2019] NSWCATAP 221 eMove Pty Ltd v Dickinson [2015] NSWCATAP 94 Hometeam Constructions Pty Ltd v McCauley [2005] NSWCA 303 Kapeller v BH Australia Constructions Pty Ltd [2019] NSWCATAP 40 Koompahtoo Local Aboriginal Land Council & Anor v Sanpine Pty Ltd [2007] HCA 61; (2007) 233 CLR 115 Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd (1938) 38 SR (NSW) 632
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Phillip Kapeller (First Applicant) Rachael Cesnik (Second Applicant) Respondent: BH Australia Pty Ltd (Respondent)
Representation:	Counsel: P Williams (Respondent) Solicitors: DWF (Australia) (Respondent)
File Number(s):	HB 19/0928 & HB 19/09300
Publication restriction:	Nil