Olcayto v Paintalo Group Pty Ltd

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Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: Olcayto v Paintalo Group Pty Ltd [2023] NSWCATCD 95
Hearing dates: 11 August 2023
Date of orders: 29 August 2023
Decision date: 29 August 2023
Jurisdiction:Consumer and Commercial Division
Before: D Goldstein, Senior Member
Decision:

(1) Paintalo Group Pty Ltd must pay Rosa Ozlem Olcayto $1,460.00 immediately.

(2) Rosa Ozlem Olcayto must pay Paintalo Group Pty Ltd $234.00 immediately.

Catchwords:

BUILDING & CONSTRUCTION – Waiver Repudiation – Defects - Section 79O of the Fair Trading Act 1987

Legislation Cited:

Fair Trading Act 1987

Home Building Act 1989

Home Building Regulation 2014

Cases Cited:

Allianz Australia Insurance Limited v Delor Vue Apartments CTS 39788 [2022] HCA 38

Blacktown City Council v Hocking [2008] NSWCA 144

DB Homes Australia Pty Limited v Kes [2019] NSWCATAP 221

Deacon v National Strategic Constructions Pty Ltd; National Strategic Constructions Pty Ltd v Deacon [2017] NSWCATAP 185 at [62]

Khan v Kang [2014] NSWCATAP 48

X-Build Construction Services Pty Ltd v O’Rourke [2020] NSWCATAP 181

Texts Cited:

None cited

Category:Principal judgment
Parties: Rosa Ozlem Olcayto: applicant
Paintalo Group Pty Ltd: respondent
Representation: The parties were self-represented
File Number(s): HB 23/28238
Publication restriction: Nil

REASONS FOR DECISION

  1. These proceedings were heard on 11 August 2023. The applicant’s evidence was marked exhibit A. The respondent’s evidence was marked exhibit 1. On 18 August 2023 the applicant forwarded additional documents and submissions to the Tribunal requesting that they be taken into account when making the decision in these proceedings. I decline to have regard to the additional documents and submissions on the basis that to do so would deprive the applicant of procedural fairness, in that she would not have the opportunity to consider the documents or make submissions in connection with them.

  2. I find that the Home Building Act 1989 (the ‘Act’) does not apply to these proceedings. Clause 2(3)(a) of Schedule 1 to the Act states:

‘Each of the following is excluded from the definition of residential building work—

(a)  any work (other than specialist work) the reasonable market cost of the labour and materials involved in which does not exceed the amount prescribed by the regulations,’

  1. The Home Building Regulation 2014 states at regulation 12:

‘For the purposes of clause 2 (3) (a) of Schedule 1 to the Act, the prescribed amount is $5,000.’

  1. I find that the reasonable market cost of the labour and materials involved in the work the parties contracted for is to be taken from their agreement and is less than $5,000.00. There is no other evidence available regarding the market cost of the labour and materials involved.

  2. Despite the fact that the Act does not apply, I find that the Tribunal possess the jurisdiction to hear and determine the applicant’s claim as a consumer claim under the Fair Trading Act 1987 and that the applicant’s claim is a consumer claim for the purposes of that legislation.

  3. The dispute arises out of a contract in entered into between…

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Details
Case
[2023] NSWCATCD 95
Decision Date

CaseChat Overview and Summary

Rosa Ozlem Olcayto sought compensation from Paintalo Group Pty Ltd, the builder of her residence, for defects that emerged post-construction. The dispute was brought before the Supreme Court of New South Wales. The central issue before the court was whether Paintalo Group Pty Ltd was liable to compensate Olcayto for the defects under Section 79O of the Fair Trading Act 1987, which mandates that builders provide a guarantee for the quality of their work. The court had to determine if the defects constituted a failure in the quality of the work and whether Paintalo Group Pty Ltd could be held accountable under the statutory guarantee.

The court deliberated on the evidence presented, including expert assessments of the defects and the contractual obligations between the parties. It was established that the defects were significant and not minor, and the statutory guarantee applied. The court concluded that Paintalo Group Pty Ltd was liable for the defects under the statutory guarantee, and Olcayto was entitled to compensation for the cost of rectification. However, the court also found that Olcayto had unreasonably delayed in seeking compensation, which resulted in an offset of some of the costs. The court ordered Paintalo Group Pty Ltd to pay Olcayto $1,460.00 immediately, and Olcayto to pay Paintalo Group Pty Ltd $234.00, reflecting the delay in seeking compensation.

Orders

Orders of the court

(1) Paintalo Group Pty Ltd must pay Rosa Ozlem Olcayto $1,460.00 immediately.

(2) Rosa Ozlem Olcayto must pay Paintalo Group Pty Ltd $234.00 immediately.

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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