Ling v Xu

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Ling v Xu [2022] NSWCATCD 77

Hearing dates:

7 and 8 April 2022

Date of orders:

09 May 2022 [amended 26 May 2022]

Decision date:

09 May 2022

Jurisdiction:

Consumer and Commercial Division

Before:

D Goldstein, Senior Member

Pursuant to Section 63 of the Civil and Administrative Tribunal Act 2013, orders published on 9 May 2022 are amended on 26 May 2022.

Decision:

1. Weijiang Xu also known as Jeff Xu must pay Wei Ling $66,206.39 immediately.

2. HB 21/43872 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/she receives the application to lodge in the Tribunal and serve on the costs applicant his or her submissions, if any, in response to the costs application, such submissions either attaching or referring to the documents relied upon.

5. 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.

6. Subject to the parties’ submissions, the Tribunal will determine any costs application on the basis of the papers lodged in the Tribunal.

Catchwords:

BUILDING & CONSTRUCTION – Termination – Construction of contract – unlicensed contractor – Quantum meruit

Legislation Cited:

Home Building Act 1989 (NSW)

Home Building Regulation 2014 (NSW)

Cases Cited:

DB Homes Australia Pty Limited v Kes [2019] NSWCATAP 221

Nyunt v North Shore Homes Pty Ltd [2020] NSWCATAP 143

Robinson v Harman (1848) 1 Ex.850

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Wei Ling (Applicant)
Weijiang Xu also known as Jeff Xu (Respondent)
Shuxin Zhou (Second Respondent)

Representation:

Applicant (Self represented)
Respondent (Self represented)
Second respondent (Self represented)

File Number(s):

HB 21/29372 & HB 21/43872

Publication restriction:

Nil

REASONS FOR DECISION

1. In these Reasons I will refer to the applicant, Wei Ling as the owner and to the respondent Weijiang Xu also known as Jeff Xu, as the builder.

2. These proceedings and the parties’ claims against each other arise out of residential building work performed by the builder at the owner’s residence in Dural.

3. The owner’s claim was primarily for a refund of $120,000.00 paid to the builder. The builder’s claim was for $298,100.00.

4. The evidence in the proceedings was:

1. Exhibit A, report of Mr Gordon Xue dated 30 November 2021;,

2. Exhibit B, affidavit of Wei Ling affirmed 5 December 2021;

3. Exhibit C – witness statement of Lijun He;

4. Exhibit D postal records;

5. Exhibit 1, report David Hall filed 22 March 2022; and

6. Exhibit 2, emails regarding site visit.

5. I find that the builder at all relevant times was licensed under…