Mac v Antworks Pty Ltd - [2016] NSWCATCD 75

Civil and Administrative Tribunal

New South Wales

Case Name:	Mac v Antworks Pty Ltd
Medium Neutral Citation:	[2016] NSWCATCD 75
Hearing Date(s):	7 April, 8 April 2015 and 31 August 2015
Decision Date:	28 September 2016
Jurisdiction:	Consumer and Commercial Division
Before:	D Goldstein, Senior Member
Decision:	1. Antworks Pty Ltd must pay Colin Mac and Nina Mac the sum of $108,774.64 immediately. 2. Antworks Pty Ltd must immediately deliver to Colin Mac and Nina Mac certificates in its possession relating to Termite works, Timber Framing and Glazing Works relating to the work carried out under the contract the subject of these proceedings. 3. The parties are at liberty to make a costs application in these proceedings. 4. Any costs application pursuant to section 53 of the Consumer, Trader and Tenancy Tribunal Act 2001 must be lodged in the Tribunal and served on the costs respondent within 21 days of the date of this order either attaching or referring to the documents relied upon in support of the application. 5. The costs respondent will have 21 days after the date it receives the application referred to lodge in the Tribunal and serve on the costs applicant its submissions, if any, in response to the cost applicant’s costs application, such submissions either attaching or referring to the documents relied upon. 6. The cost applicant will have 14 days after the date it receives the cost respondent’s submissions to lodge in the Tribunal and serve on the costs respondent its submissions, if any, in reply, such submissions either attaching or referring to the documents relied upon. 7. The Tribunal will determine any costs application on the basis of the papers lodged in the Tribunal.
Catchwords:	Extensions of time, termination of building contract, defective and incomplete work, liquidated damages
Legislation Cited:	Civil and Administrative Tribunal Act 2013 Consumer, Trader and Tenancy Tribunal Act 2001 Consumer, Trader and Tenancy Tribunal Regulation 2009 Home Building Act 1989
Cases Cited:	David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353 Fairey Australasia Pty Ltd v Joyce and Anor [1981] 2 NSWLR, 314 at 321 Hometeam Constructions Pty Ltd v McCauley [2005] NSWCA 303 Hungerfords v Walker 171 C.L.R., 125 Robinson v Harman (1848) 1 Ex.850 Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359 SRA v Consumer Claims Tribunal 14 NSWLR at 473 Tramways Advertising Pty Ltd v Luna Park (1938) 38 SR (NSW) 632
Texts Cited:	Building and Construction Contracts in Australia, Second Edition
Category:	Principal judgment
Parties:	Applicants: Colin Mac and Nina Mac Respondent: Antworks Pty Ltd
Representation:	Counsel: Mr D. Neggo for the applicants Mr I. George for the respondent Solicitors: Adams & Partners for the applicants J.P. Gould for the respondent
File Number(s):	HB 13/12266
Publication Restriction:	Unrestricted

REASONS FOR DECISION

These proceedings were commenced in March 2013.
The Consumer Trader and Tenancy Tribunal was abolished as of 1 January 2014 and the Consumer, Trader and Tenancy Tribunal Act 2001 and the Consumer, Trader and Tenancy…

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.

Continue reading Mac v Antworks Pty Ltd

Details

AGLC: Mac v Antworks Pty Ltd [2016] NSWCATCD 75
Case: [2016] NSWCATCD 75
Decision Date: 28 September 2016

CaseChat Overview and Summary

Colin Mac and Nina Mac sued Antworks Pty Ltd for breach of a building contract. The dispute involved claims of defective and incomplete work, as well as the termination of the contract. The Consumer, Trader and Tenancy Tribunal heard the matter and ultimately found in favour of the Macs. The tribunal ordered Antworks to pay the Macs $108,774.64, deliver certificates relating to the Termite, Timber Framing and Glazing Works, and permitted the parties to apply for costs.

The legal issues before the tribunal included whether Antworks was entitled to extensions of time to complete the work and whether the Macs were justified in terminating the contract due to Antworks' defective and incomplete work. The tribunal examined the terms of the contract, the timelines set forth, and the quality of the work completed. The tribunal also assessed whether the Macs were entitled to liquidated damages and whether Antworks had breached the contract by failing to deliver the required certificates.

The tribunal found that Antworks was not entitled to extensions of time and that the Macs were justified in terminating the contract due to Antworks' defective and incomplete work. The tribunal rejected Antworks' claim that it had acted reasonably and with due care in carrying out the work. The tribunal also held that the Macs were entitled to liquidated damages and that Antworks had breached the contract by failing to deliver the required certificates. The tribunal ordered Antworks to pay the Macs $108,774.64, deliver the certificates, and permitted the parties to apply for costs.

The tribunal ordered Antworks to pay the Macs $108,774.64 immediately and deliver the relevant certificates. The tribunal also permitted the parties to apply for costs, setting out a process for the parties to follow in making and responding to costs applications. The tribunal emphasised that any costs application must be lodged in the Tribunal and served on the costs respondent within 21 days of the date of the tribunal's order. The tribunal also set out a process for the parties to follow in making and responding to costs applications.

Orders

Orders of the court

1. Antworks Pty Ltd must pay Colin Mac and Nina Mac the sum of $108,774.64 immediately.

2. Antworks Pty Ltd must immediately deliver to Colin Mac and Nina Mac certificates in its possession relating to Termite works, Timber Framing and Glazing Works relating to the work carried out under the contract the subject of these proceedings.

3. The parties are at liberty to make a costs application in these proceedings.

4. Any costs application pursuant to section 53 of the Consumer, Trader and Tenancy Tribunal Act 2001 must be lodged in the Tribunal and served on the costs respondent within 21 days of the date of this order either attaching or referring to the documents relied upon in support of the application.

5. The costs respondent will have 21 days after the date it receives the application referred to lodge in the Tribunal and serve on the costs applicant its submissions, if any, in response to the cost applicant’s costs application, such submissions either attaching or referring to the documents relied upon.

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

7. The Tribunal will determine any costs application on the basis of the papers lodged in the Tribunal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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