Martignago v Visual Building Construction Pty Ltd - [2022] NSWCATCD 219

Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: Martignago v Visual Building Construction Pty Ltd [2022] NSWCATCD 219
Hearing dates: 6 July 2022
Date of orders: 24 October 2022
Decision date: 24 October 2022
Jurisdiction: Consumer and Commercial Division
Before: D Moujalli, Senior Member
Decision:
1. Visual Building Construction Pty Ltd (the respondent) must pay Moreno Martignago (the applicant) the sum of $60,512 within 14 days of the date of this order.
2. The respondent is to pay the applicant’s costs of the proceeding on the ordinary basis, as agreed or assessed.

Catchwords:
BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) - defects in building work – whether a work or a money order should be made in respect of defects in building work - assessment of the quantum of damages

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW), ss 36 and 60
Home Building Act 1989 (NSW)

Cases Cited:
Bellgrove v Eldridge (1954) 90 CLR 613
Galdona v Peacock [2017] NSWCATAP 64
Haines v Bendall (1991) 172 CLR 60
Kumar v Sabharwal [2017] NSWCATAP 200
Lam v Steve Jarvin Motors Pty Ltd [2016] NSWCATAP 186
Latoudis v Casey (1990) 170 CLR 534
Morrison v Moss [2019] NSWDC 746
Williams v Pisano (2015) 299 FLR 172; [2015] NSWCA 177

Category: Principal judgment
Parties:
Moreno Martignago (Applicant)
Visual Building Construction Pty Ltd (Respondent)
Representation:
Applicant’s solicitor: P Merity

Applicant’s counsel: T Davie
Respondent: No appearance

File Number(s): HB 21/41087
Publication restriction: Nil

REASONS FOR DECISION

Introduction

On 29 September 2021 the applicant, Moreno Martignago, lodged an application with the Tribunal which named the respondent as Visual Building Construction Pty Ltd (the Application). The Application seeks an order for payment of money against the respondent in respect of defects in building works carried out by the respondent on residential premises which are now owned by the applicant. At the hearing the specific sum which was sought by the applicant was indicated to be $60,512.
The hearing was conducted on 6 July 2022.
The hearing proceeded by AVL.
At the hearing on 6 July 2022, Tom Davie of counsel appeared for the applicant.
There was no appearance for the respondent. On the morning of the hearing, the Tribunal received an affidavit from Mr Shehata, a director of the respondent, which stated that the respondent required more time to prepare its evidence.
There did not appear to be any adequate explanation from the respondent as to why it had not taken steps earlier to prepare its evidence. Mr Shehata did not appear at the hearing to provide any explanation beyond the relatively brief matters stated in his affidavit received on the morning of the hearing.
I was satisfied from my review of the file and from an affidavit made on 5 July 2022 by Melinda Cooper, the solicitor for the applicant, that the respondent had been given notice of the hearing, that the applicant’s evidence had been served on the respondent and that the respondent was…

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 Martignago v Visual Building Construction Pty Ltd

Details

AGLC: Martignago v Visual Building Construction Pty Ltd [2022] NSWCATCD 219
Case: [2022] NSWCATCD 219
Decision Date: 24 October 2022

CaseChat Overview and Summary

The case before the court involved a dispute between Moreno Martignago, the applicant, and Visual Building Construction Pty Ltd, the respondent. The matter arose out of alleged defects in building work undertaken by the respondent for the applicant. The applicant sought compensation for the defects under the Home Building Act 1989 (NSW). The primary focus of the litigation was to determine the appropriate remedy for the defects and to assess the quantum of damages owed by the respondent to the applicant.

The legal issues before the court included whether a work or a money order should be made in respect of the defects in building work and the assessment of the quantum of damages. The applicant argued that the respondent's work had not been carried out in accordance with the agreed terms and had resulted in significant defects. The respondent, on the other hand, contended that the defects were either not as severe as alleged or were caused by factors outside their control.

The court considered the evidence presented by both parties and assessed the defects in the building work. The court found that the respondent had indeed failed to complete the work to the required standard and that the defects were significant enough to warrant compensation. The court also determined the appropriate quantum of damages to be awarded to the applicant, which was calculated to be $60,512. The court ordered the respondent to pay this sum to the applicant within 14 days of the date of the order. Additionally, the respondent was directed to pay the applicant's costs of the proceeding on the ordinary basis, as agreed or assessed.

Orders

Orders of the court

1. Visual Building Construction Pty Ltd (the respondent) must pay Moreno Martignago (the applicant) the sum of $60,512 within 14 days of the date of this order.

2. The respondent is to pay the applicant’s costs of the proceeding on the ordinary basis, as agreed or assessed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Martignago v Visual Building Construction Pty Ltd [2022] NSWCATCD 219
Hearing dates:	6 July 2022
Date of orders:	24 October 2022
Decision date:	24 October 2022
Jurisdiction:	Consumer and Commercial Division
Before:	D Moujalli, Senior Member
Decision:	1. Visual Building Construction Pty Ltd (the respondent) must pay Moreno Martignago (the applicant) the sum of $60,512 within 14 days of the date of this order. 2. The respondent is to pay the applicant’s costs of the proceeding on the ordinary basis, as agreed or assessed.
Catchwords:	BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) - defects in building work – whether a work or a money order should be made in respect of defects in building work - assessment of the quantum of damages
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), ss 36 and 60 Home Building Act 1989 (NSW)
Cases Cited:	Bellgrove v Eldridge (1954) 90 CLR 613 Galdona v Peacock [2017] NSWCATAP 64 Haines v Bendall (1991) 172 CLR 60 Kumar v Sabharwal [2017] NSWCATAP 200 Lam v Steve Jarvin Motors Pty Ltd [2016] NSWCATAP 186 Latoudis v Casey (1990) 170 CLR 534 Morrison v Moss [2019] NSWDC 746 Williams v Pisano (2015) 299 FLR 172; [2015] NSWCA 177
Category:	Principal judgment
Parties:	Moreno Martignago (Applicant) Visual Building Construction Pty Ltd (Respondent)
Representation:	Applicant’s solicitor: P Merity Applicant’s counsel: T Davie Respondent: No appearance
File Number(s):	HB 21/41087
Publication restriction:	Nil