Lionel Smith v John Emmery

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Lionel Smith v John Emmery [2014] NSWCATCD 66

Hearing dates:

2 February 2012, 13 September 2012, 29 November 2013, 23 January 2014

Decision date:

06 May 2014

Before:

J Lynch, General Member

Decision:

The respondent is to pay the applicant $28 195.00 within 21 days of the date of this order.

Costs reserved pending receipt of any further written submissions to be filed and served by 16 May 2014 in the case of the applicant and by 30 May 2014 in the case of the respondent.

Catchwords:

Home Building - breach of contract-condition, warranty or intermediate term-damages-insurance -just and equitable

Legislation Cited:

Home Building Act 1989 (NSW)

Cases Cited:

Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61
Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd
Gumland Property Holdings Pty Limited v Duffy Bros Fruit Market (Campbelltown) Pty Limited [2008] HCA 10
Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 14 CLR 596 at 611
Eddy Lau Constructions Pty Ltd v Trans development Enterprises Pty Ltd [2004]NSWSC 273
Bergco v Boyles [1971]VR 321
Pender v Robwenphi Pty Ltd [2008] NSWSC
1144
Visscher v The Honourable President Justice Giudice [2009] HCA 34

Category:

Principal judgment

Parties:

Lionel Smith (applicant),
John Emmery (respondent)

Representation:

R Dean (applicant)
Skinner and Associates (applicant)
Robb and Associates (respondent)

File Number(s):

HB 10/48765

reasons for decision

JURISDICTION

1. The claim by the home owner arises from making of alterations to a residential building at Albury. It is therefore a building claim as defined in the Home Building Act 1989 ("the Act") s 48A. The Tribunal has jurisdiction under the provisions of s 48K(7). The claim is for refund of monies paid and damages for breach of contract, and rectification costs for breach of statutory warranties. As it was filed within 3 years of the performance of work, the Tribunal has jurisdiction under the provisions of the Act s 48K (8).

There was no submission at the hearing that the Tribunal did not have jurisdiction to hear the application.

APPLICATION

1. In this application Lionel Douglas Smith (home owner) seeks damages for breach of contract against John Emmery (builder). The home owner seeks $54,094.00 comprising rectification and difference between contract price and completion costs $42,094.00 plus a refund of $12,000.00 paid to the builder.

1. The builder denies the claim and states no refund is due and he is not liable for difference in cost as the applicant did not comply with the contract with respect to termination and the defects complained of have either not been established or if so no opportunity was provided to rectify them.

PROCEEDINGS

1. The parties were initially unrepresented. On 27 January 2011 Member Bryant granted leave for each party to be represented. The home owner then engaged a series of solicitors including Slater and Gordon, advice from Macquarie Legal Centre, Huggins McIntyre and finally Skinner and Associates and the builder was represented by Robb…