Millen v Skyview Homes Pty Ltd

Case [2021] NSWCATCD 137


Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: Millen v Skyview Homes Pty Ltd [2021] NSWCATCD 137
Hearing dates: 30 June 2021
Date of orders: 29 October 2021
Decision date: 29 October 2021
Jurisdiction:Consumer and Commercial Division
Before: G Sarginson, Senior Member
Decision:

(1) The respondent Skyview Homes Pty Ltd is to pay the applicant Jacqueline Gai Millen the amount of $56,897.66 by 28 days from the date of this decision.

(2) By 14 days from the date of this decision, the applicant is to file with the Tribunal and serve on the respondent, by person or by post, all documents and submissions relied upon on the issue of costs.

(3) By 28 days from the date of this decision, the respondent is to file with the Tribunal and serve on the applicant, by person or by post, all documents and submissions relied upon on the issue of costs.

(4) By 35 days from the date of this decision, the applicant is to file with the Tribunal and serve on the respondent, by person or by post, all costs submissions in reply.

(5) Both parties have liberty to apply to the Tribunal in writing to vary the timetable for costs submissions

Catchwords:

BUILDING AND CONSTRUCTION — Home Building — Renewal proceedings —​​​​​​​ Whether orders of Tribunal not complied with —​​​​​​​ Circumstances of non-compliance —​​​​​​​ Conduct of the parties —​​​​​​​ ​​​​​​​Appropriate remedial orders

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Civil and Administrative Tribunal Rules 2014 (NSW)

Civil Liability Act 2002 (NSW)

Home Building Act 1989 (NSW)

Cases Cited:

Bellgrove v Eldridge [1954] HCA 36; (1954) 90 CLR 613

Blessed Sydney Constructions Pty Ltd v Vasudevan [2018] NSWCATAP 98

Bondarek v NSW Land and Housing Corporation [2018] NSWCATAP 299

Catapult Constructions Pty Ltd v Denison [2018] NSWCATAP 158

Cordon Investments Pty Ltd v Lesdor Properties [2012] NSWCA 184

Deacon v National Strategic Constructions Pty Ltd; National Strategic Constructions Pty Ltd v Deacon [2017] NSWCATAP 185

Leung v Alexakis [2018] NSWCATAP 11

Minifie v Maxwell [2020] NSWCATAP 30

Moore v Scenic Tours Pty Ltd [2020] HCA 17; (2020) 286 CLR 326,

Murphy v Zubkyrcki & Anor [2020] NSWDC 538

Robinson v Hindmarsh Construction Australia Pty Ltd [2021] NSWCATAP 51

Westpoint Management Ltd v Chocolate Factory Apartments Ltd; Chocolate Factory Apartments Pty Ltd v Westpoint Management Ltd [2007] NSWCA 253

Texts Cited:

Nil

Category:Principal judgment
Parties:

Jacqueline Gai Millen (Applicant)

Skyview Homes Pty Ltd (Respondent)
Representation:

Counsel:

P Horobin (Respondent)

Solicitors:

Meehans Solicitors (Respondent)
File Number(s): HB 21/18862
Publication restriction: Nil

REASONS FOR DECISION

  1. This is a renewal of proceedings under Sch 4 Cl. 8 of the Civil and Administrative Tribunal Act 2013 (NSW) (‘the NCAT Act’).

  2. The respondent is a licensed builder who constructed a new residential dwelling in south western Sydney, NSW. The builder was the owner of the house and land. A final occupation certificate was issued on 25 September 2019.

  3. On about 27 September 2019, the applicant purchased the land…

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Details
AGLC
Millen v Skyview Homes Pty Ltd [2021] NSWCATCD 137
Case
[2021] NSWCATCD 137
Decision Date

CaseChat Overview and Summary

The applicant, Jacqueline Gai Millen, brought a proceeding against Skyview Homes Pty Ltd in the Civil and Administrative Tribunal of New South Wales. The dispute centred on the alleged non-compliance by Skyview Homes with the orders of the Tribunal, specifically in relation to a home building dispute. The applicant sought a declaration that the respondent had not complied with certain orders, and sought various orders including costs.

The legal issues before the court were whether Skyview Homes had indeed failed to comply with the Tribunal's orders, and if so, what the appropriate remedial orders should be. This involved examining the circumstances of the non-compliance, the conduct of the parties, and the nature of the orders that were not complied with.

The court found that Skyview Homes had indeed not complied with the orders of the Tribunal. It was clear from the evidence that the respondent had failed to take certain actions as ordered, despite having the means and ability to do so. The applicant's conduct was found to be reasonable and justified, and the respondent's conduct was found to be in breach of the orders. The court then considered the appropriate remedial orders, taking into account the nature of the non-compliance and the conduct of the parties. The court ordered Skyview Homes to pay the applicant a sum of money, and set out a timetable for the parties to file and serve their costs submissions.

In conclusion, the court ordered that Skyview Homes pay the applicant $56,897.66, and set out a timetable for the parties to file and serve their costs submissions. The court also granted both parties liberty to apply to vary the timetable if necessary.

Orders

Orders of the court

(1) The respondent Skyview Homes Pty Ltd is to pay the applicant Jacqueline Gai Millen the amount of $56,897.66 by 28 days from the date of this decision.

(2) By 14 days from the date of this decision, the applicant is to file with the Tribunal and serve on the respondent, by person or by post, all documents and submissions relied upon on the issue of costs.

(3) By 28 days from the date of this decision, the respondent is to file with the Tribunal and serve on the applicant, by person or by post, all documents and submissions relied upon on the issue of costs.

(4) By 35 days from the date of this decision, the applicant is to file with the Tribunal and serve on the respondent, by person or by post, all costs submissions in reply.

(5) Both parties have liberty to apply to the Tribunal in writing to vary the timetable for costs submissions

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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