LeLievre v Dave King Building Services Pty Ltd

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

LeLievre v Dave King Building Services Pty Ltd [2020] NSWCATCD 11

Hearing dates:

17 September 2019

Date of orders:

31 January 2020

Decision date:

31 January 2020

Jurisdiction:

Consumer and Commercial Division

Before:

D Goldstein, Senior Member

Decision:

(1) Dave King Building Services Pty Ltd must pay Stuart Gregory LeLievre the sum of $86,104.62 immediately.

(2) The application against David Warwick King is dismissed.

(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 he 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 he 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:

HOME BUILDING – Do and charge contract – defective work – No question of principle

Legislation Cited:

Home Building Act 1989 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Cases Cited:

Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54

JLW (Vic) Pty Ltd v Tsiloglou and Others [1994] Vic Rp 16; [1994] 1 VR 237

Nguyen v Cosmopolitan Homes [2008] NSWCA 246

Tuck v White [2016] NSWCATAP 132

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Stuart Gregory LeLievre (Applicant)
Dave King Building Services Pty Ltd (First Respondent)
David Warwick King (Second Respondent)

Representation:

Counsel:
Mr A Munro (First and Second Respondent)

Solicitors:
Peter Payne Law (Applicant)
Campbell Paton & Taylor (First and Second Respondent)

File Number(s):

HB 18/27996

Publication restriction:

Nil

REASONS FOR DECISION

1. These proceedings raise interesting issues regarding the weight of evidence necessary to establish defects and the quantification of damage. Perhaps these issues have arisen because the location of the dispute is in rural New South Wales, and building experts in these areas with relevant experience in giving evidence in the Tribunal are difficult to engage.

2. So far as quantification of damage is concerned, in Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54 at [31], Mason CJ and Dawson at page 83 stated: