Olcayto v Paintalo Group Pty Ltd

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,’

3. 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.’

4. 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.

5. 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.

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