Masterglass Facades Pty Ltd v Pollak

Case [2017] NSWCATCD 45

Civil and Administrative Tribunal


New South Wales

  • Amendment notes
Medium Neutral Citation: Masterglass Facades Pty Ltd v Pollak [2017] NSWCATCD 45
Hearing dates:7 April 2017, written submissions 13 April 2017.
Decision date: 01 June 2017
Jurisdiction:Consumer and Commercial Division
Before: Ian Bailey AM SC, Senior Member
Decision:

1. Joseph Pollak is to pay Masterglass Facades Pty Ltd the sum of $16,136.00 (incl GST) immediately.
2. Each party shall pay their own costs of the proceedings.

Catchwords: Sections 10 and 94(1A) Home Building Act 1989. – just and equitable - quantum meruit – determination of amount – diminution in value of work performed – temporary disconformity
Legislation Cited: Civil and Administrative Tribunal Act 2013
Home Building Act 1989
Cases Cited: Lee Gleeson Pty Ltd v Sterling Estates Pty Ltd (1991) 23 NSWLR 571
O’Connor v LEAW Pty Ltd (1997) 42 NSWLR 285
Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221
Urban Constructions (NSW) Ltd v B & B Shearer [2015] NSWCATCD 9
Eden Constructions Pty Ltd v Grigor [2016] NSWCATAP 182
J & M Zammit (t/as Zammit Quality Constructions) v S & S Markunsky [2015] NSWCATCD 21
Lauer v Comer (No 2) [2016] NSWCATAP 158
Eddy Lau Constructions Pty Ltd v Transdevelopment Enterprise Pty Ltd [2004] NSWSC 273
Pender v Robwenphi Pty Limited & Anor [2008] NSWSC 1144
Brenner v First Artists’ Management Pty Ltd [1993] 2 VR 221
Sopov v Kane Constructions Pty Ltd (No 2) [2009] VSCA 141
Mondel v Steele (1841) 8M & W858
Texts Cited: Dorter & Sharkey Building and Construction Contracts in Australia, Second Edition, Thomson Reuters.
Category:Principal judgment
Parties: Masterglass Facades Pty Ltd, Applicant in HB 16/49943 and Respondent in HB 16/53939
Joseph Pollak, Respondent in HB 16/49943 and Claimant in HB 16/53939
Representation: Masterglass Facades Pty Ltd, Adam Punin, Director
Joseph Pollak in person
File Number(s):HB 16/49943 and HB 16/53939
Publication restriction:Unrestricted

Reasons for Decision

  1. These proceedings involve an application by Masterglass Facades Pty Ltd (“the Applicant”), in proceedings HB 16/49943, for payment by Joseph Pollak (“the Respondent”), of an amount incurred in the supply and installation of large sliding doors to the living room of a penthouse apartment in Potts Point. The amount claimed incudes amounts for both the works identified in the initial quotation and additional costs for variations to the work during the installation of the doors.

  2. There is a cross application by the Respondent, HB 16/53939, seeking damages arising from alleged defects in the design and installation of the sliding doors, which, it is claimed, caused the entry of rainwater during an extreme weather event on 4th and 5th June 2016. There is also an extremely complex defence to the claim including several contentions as to why the Applicant is not entitled to the payment of any amount, including a claim for a refund to the Respondent of an amount paid as a deposit.

  3. The extent to which the parties’ contentions were expressed formally was limited, particularly on the part of…

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AGLC
Masterglass Facades Pty Ltd v Pollak [2017] NSWCATCD 45
Case
[2017] NSWCATCD 45
Decision Date

CaseChat Overview and Summary

Masterglass Facades Pty Ltd initiated proceedings against Joseph Pollak in the Queensland Civil and Administrative Tribunal, seeking compensation for work performed under a building contract. Masterglass provided services for the installation of glass facades but experienced issues when the glass panels did not conform to specifications. This led to a dispute over the amount owed and the quality of work completed.

The central legal issues were the determination of the amount owed under the contract and the assessment of the diminution in value of the work performed due to the temporary disconformity. The court had to consider whether the payment of a quantum meruit was appropriate, given the incomplete and non-compliant nature of the work delivered. Additionally, the court needed to decide if the disconformity was temporary and whether it justified a reduction in the amount owed.

In its decision, the tribunal found that while there was a temporary disconformity, Masterglass had substantially performed the contract. The tribunal considered it just and equitable to compensate Masterglass for the work done, less the diminution in value caused by the disconformity. The tribunal calculated the amount owed based on the contract terms and the evidence provided, resulting in a final sum of $16,136.00, including GST. The tribunal also determined that each party bear their own costs for the proceedings.

The orders required Joseph Pollak to pay Masterglass the calculated amount immediately, while also stipulating that each party was responsible for their own costs incurred during the litigation.

Orders

Orders of the court

1. Joseph Pollak is to pay Masterglass Facades Pty Ltd the sum of $16,136.00 (incl GST) immediately.

2. Each party shall pay their own costs of the proceedings.

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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