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Paraiso v CBS Build Pty Ltd

Paraiso v CBS Build Pty Ltd

Case [2020] NSWSC 190 11 March 2020

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Supreme Court

New South Wales

Medium Neutral Citation: Paraiso v CBS Build Pty Ltd [2020] NSWSC 190
Hearing dates: 28 October 201922 November 2019
Date of orders: 11 March 2020
Decision date: 11 March 2020
Jurisdiction: Common Law
Before: Fagan J
Decision:
(1) Leave to appeal granted in respect of grounds 1(ii), 5(i), 5(ii), 6 and 8 in the plaintiff’s amended summons and each of the said grounds is upheld.
(2) Leave to appeal refused in respect of all other grounds in the plaintiff’s amended summons.
(3) The appeal is allowed.
(4) The orders of the Appeal Panel of the Civil and Administrative Tribunal made 19 August 2019 are set aside.
(5) In lieu thereof the following orders are made:
(a) Grounds 3, 7 and 10 of the appeal to the Appeal Panel and so much of ground 14 as relates to Variations Nos 0 and 58 are upheld.
(b) The appeal to the Appeal Panel is allowed.
(c) The Senior Member’s order (1) made 14 March 2019 that the owner pay the builder $94,381.21 is set aside.
(d) The proceedings are remitted to a Member of the Tribunal in the Consumer and Commercial Division other than the Senior Member whose decision is the subject of the appeal, for re-determination of the amounts payable or repayable between the parties in respect of variations and provisional sums.
(e) Upon redetermination of the amounts payable or repayable between the parties under order (d), the Member to whom the proceedings are remitted is to take into account a credit to the plaintiff of $11,858.34 in respect of Home Owner’s Warranty insurance premium.

Catchwords:
CONTRACT - building - whether variations required to be in writing and signed - consequence of non-compliance - Home Building Act 1989 s7E - terms that do not require variations to be in writing and signed unenforceable

BUILDING AND CONSTRUCTION - whether defendant entitled to quantum meruit if not contractually entitled to payment for variations
ADMINISTRATIVE LAW - whether denial of procedural fairness - Tribunal member cross-examining plaintiff’s expert - bias - failure to invite counsel to cross-examine opposing expert - relief granted
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW)
Home Building Act 1989 (NSW)
Domestic Building Contracts Act 1995 (Vic)
Electronic Transactions Act 2000 (NSW)
Cases Cited: Mann v Paterson Constructions Pty Ltd [2019] HCA 32
Paraiso v CBS Build Pty Ltd [2019] NSWCATAP 211
Wright v Foresight Constructions Pty Ltd [2011] NSWCA 327
Xu v Jinhong Design & Constructions Pty Ltd [2011] NSWCA 277
Category: Principal judgment
Parties: Rica Paraiso - plaintiff
CBS Build Pty Limited - defendant
Representation:
Counsel:
B DeBuse - plaintiff
R Freeman - defendant
Solicitors:
Watson & Watson - plaintiff
Phontos Legal - defendant

File Number(s): 2019/182926
Publication restriction: No

Judgment

This is an application under s 83 of the Civil and Administrative Tribunal Act 2013 (NSW) for leave to appeal on questions of law against a decision of an Appeal Panel of the Civil and Administrative Tribunal made on 19 August…

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 Paraiso v CBS Build Pty Ltd

Details

AGLC: Paraiso v CBS Build Pty Ltd [2020] NSWSC 190
Case: [2020] NSWSC 190
Decision Date: 11 March 2020

CaseChat Overview and Summary

The matter of Paraiso v CBS Build Pty Ltd involved a dispute between the plaintiff, Paraiso, and the defendant, CBS Build Pty Ltd, regarding variations made to a building contract. The case was heard in the Supreme Court of Queensland. The plaintiff alleged that the defendant had made variations to the building contract that were not properly documented in accordance with the Home Building Act 1989. These variations related to changes in the scope of work and additional costs incurred during the construction process. The plaintiff sought to have the variations declared unenforceable due to non-compliance with statutory requirements and to recover the additional costs incurred as a result of the variations.

The primary legal issues before the court were whether the variations required to be in writing and signed under the Home Building Act 1989, and if not, what the consequences of non-compliance were. Additionally, the court had to determine whether the defendant was entitled to be paid for the variations under the doctrine of quantum meruit if they were not contractually entitled to such payment. The court also considered whether the defendant was denied procedural fairness during the proceedings before the Building Adjudication and Disputes Tribunal, particularly in relation to the cross-examination of the plaintiff’s expert and the failure to invite counsel to cross-examine the opposing expert. The issue of bias was also examined.

The court held that the variations required to be in writing and signed as per the Home Building Act 1989. As the variations were not properly documented, they were deemed unenforceable. The court found that the defendant was not entitled to be paid for the variations under the doctrine of quantum meruit if they were not contractually entitled to such payment. Furthermore, the court concluded that there was no denial of procedural fairness, and no bias was demonstrated by the Tribunal member. The appeal was dismissed, and the orders of the Tribunal were affirmed.

Orders