Lucien v Mullally; Mullally v Lucien - [2021] NSWCATCD 145

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Lucien v Mullally; Mullally v Lucien [2021] NSWCATCD 145
Hearing dates: 29 April 2021, 21 May 2021 and 15 September 2021
Date of orders: 25 November 2021
Decision date: 25 November 2021
Jurisdiction: Consumer and Commercial Division
Before:
G Blake AM SC, Senior Member
The decision made on 25 November 2021 is amended pursuant to s 63 of the Civil and Administrative Tribunal Act 2013 (NSW): (amendments are shown in bold type)
Decision:
(1)   The builder Anthony Allan Lucien is pay the owner Nerida Mullally the sum of $31,660.65 immediately.
(2)   If the parties are in agreement as to the costs of the two proceedings, then they shall provide proposed consent orders to the Tribunal within 14 days of the date of the orders in these reasons for decision.
(3)   If the parties are not in agreement as to the costs of the two proceedings, then:
(a)   if any party seeks a costs order, the applicant for costs (the costs applicant) must file and serve a costs application, submissions which shall address the question of whether an order should be made dispensing with a hearing and be limited to five pages, and any evidence in support, within 14 days of the date of the orders in these reasons for decision;
(b)   the respondent to the costs application is to file and serve any submissions which shall address the question of whether an order should be made dispensing with a hearing and be limited to five pages, and any evidence in opposition, within 14 days thereafter;
(c)   the costs applicant is to file any submissions in reply limited to three pages within 14 days after receipt of the submissions and any evidence of the respondent to the costs application.
If you do not receive the money payable to you as directed by this order, you can get a certified copy of this money order from NCAT. You can then register it with the Local Court to enforce the order. For more information about enforcing money orders, visit the NCAT website
Catchwords:
BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — Building dispute – Whether the builder breached the building contract by failing to proceed diligently with the works - Whether the builder breached the building contract by failing to rectify defective work – Whether the owner validly terminated the building contract under its terms - Whether the owner validly terminated the building contract under the general law - Whether the owner is entitled to damages for defective work, incomplete work and for delay - Whether the owner is entitled to restitution for monies paid on behalf of the builder - Whether the builder is entitled to a work order in respect of defective work – What is the amount of the money order to which the owner is entitled for damages and restitution - Whether the builder is entitled to a quantum meruit for work done at the request or…

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: [2021] NSWCATCD 145
Decision Date: 25 November 2021

CaseChat Overview and Summary

Lucien v Mullally; Mullally v Lucien involved a building dispute between the owner, Nerida Mullally, and the builder, Anthony Allan Lucien. The dispute centred on whether the builder had breached the building contract by failing to proceed diligently with the works and by failing to rectify defective work. Additionally, the court had to determine if the owner validly terminated the building contract under its terms and under the general law. Other issues included whether the owner was entitled to damages for defective work, incomplete work, and delay, as well as restitution for monies paid on behalf of the builder. The builder sought a work order in respect of defective work, and the court also had to determine if the builder was entitled to a quantum meruit for work done at the request or for the benefit of the owner. The court was required to specify the amount of the money orders to which the owner and the builder were entitled.

The court found that the builder breached the building contract by not proceeding diligently and by not rectifying defective work. It also concluded that the owner validly terminated the contract under both the contract terms and the general law. The owner was awarded damages for defective work, incomplete work, and delay, and was also granted restitution for monies paid on behalf of the builder. The builder was not entitled to a work order for defective work, nor to a quantum meruit for work done at the request or for the benefit of the owner. The court ordered the builder to pay the owner the sum of $31,660.65 immediately. It also outlined the procedures for resolving costs between the parties if they could not agree.

In summary, the court ruled in favour of the owner on several key points, awarding her damages and restitution while denying the builder's claims for a work order and quantum meruit. The court also provided a clear path for the parties to follow in determining the costs of the proceedings. The builder was required to pay the specified sum to the owner immediately, with further instructions on enforcing the money order provided.

Orders

Orders of the court

(1) The builder Anthony Allan Lucien is pay the owner Nerida Mullally the sum of $31,660.65 immediately.

(2) If the parties are in agreement as to the costs of the two proceedings, then they shall provide proposed consent orders to the Tribunal within 14 days of the date of the orders in these reasons for decision.

(3) If the parties are not in agreement as to the costs of the two proceedings, then:

(a) if any party seeks a costs order, the applicant for costs (the costs applicant) must file and serve a costs application, submissions which shall address the question of whether an order should be made dispensing with a hearing and be limited to five pages, and any evidence in support, within 14 days of the date of the orders in these reasons for decision;

(b) the respondent to the costs application is to file and serve any submissions which shall address the question of whether an order should be made dispensing with a hearing and be limited to five pages, and any evidence in opposition, within 14 days thereafter;

(c) the costs applicant is to file any submissions in reply limited to three pages within 14 days after receipt of the submissions and any evidence of the respondent to the costs application.

If you do not receive the money payable to you as directed by this order, you can get a certified copy of this money order from NCAT. You can then register it with the Local Court to enforce the order. For more information about enforcing money orders, visit the NCAT website www.ncat.nsw.gov.au.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Lucien v Mullally; Mullally v Lucien [2021] NSWCATCD 145
Hearing dates:	29 April 2021, 21 May 2021 and 15 September 2021
Date of orders:	25 November 2021
Decision date:	25 November 2021
Jurisdiction:	Consumer and Commercial Division
Before:	G Blake AM SC, Senior Member The decision made on 25 November 2021 is amended pursuant to s 63 of the Civil and Administrative Tribunal Act 2013 (NSW): (amendments are shown in bold type)
Decision:	(1) The builder Anthony Allan Lucien is pay the owner Nerida Mullally the sum of $31,660.65 immediately. (2) If the parties are in agreement as to the costs of the two proceedings, then they shall provide proposed consent orders to the Tribunal within 14 days of the date of the orders in these reasons for decision. (3) If the parties are not in agreement as to the costs of the two proceedings, then: (a) if any party seeks a costs order, the applicant for costs (the costs applicant) must file and serve a costs application, submissions which shall address the question of whether an order should be made dispensing with a hearing and be limited to five pages, and any evidence in support, within 14 days of the date of the orders in these reasons for decision; (b) the respondent to the costs application is to file and serve any submissions which shall address the question of whether an order should be made dispensing with a hearing and be limited to five pages, and any evidence in opposition, within 14 days thereafter; (c) the costs applicant is to file any submissions in reply limited to three pages within 14 days after receipt of the submissions and any evidence of the respondent to the costs application. If you do not receive the money payable to you as directed by this order, you can get a certified copy of this money order from NCAT. You can then register it with the Local Court to enforce the order. For more information about enforcing money orders, visit the NCAT website
Catchwords:	BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — Building dispute – Whether the builder breached the building contract by failing to proceed diligently with the works - Whether the builder breached the building contract by failing to rectify defective work – Whether the owner validly terminated the building contract under its terms - Whether the owner validly terminated the building contract under the general law - Whether the owner is entitled to damages for defective work, incomplete work and for delay - Whether the owner is entitled to restitution for monies paid on behalf of the builder - Whether the builder is entitled to a work order in respect of defective work – What is the amount of the money order to which the owner is entitled for damages and restitution - Whether the builder is entitled to a quantum meruit for work done at the request or…