Patel and Patel v Caesar Homes Pty Ltd
[2022] NSWDC 48
•24 February 2022
District Court
New South Wales
Medium Neutral Citation: Patel & Patel v Caesar Homes Pty Ltd [2022] NSWDC 48 Hearing dates: 24 February 2022 Date of orders: 24 February 2022 Decision date: 24 February 2022 Jurisdiction: Civil Before: Judge Levy SC Decision: Judgment for the plaintiffs in the sum of $354,551.07.
Catchwords: DAMAGES – assessment of damages for breach of agreement based on a compromise of NCAT proceedings involving a building dispute
Legislation Cited: Civil Procedure Act 2005 (NSW), s 14, s 100
Uniform Civil Procedure Rules 2005 (NSW), r 13.1
Category: Principal judgment Parties: Mehul Patel (First plaintiff)
Jigisha Patel (Second plaintiff)
Caesar Homes Pty Ltd (Defendant)Representation: Counsel:
Solicitors:
Mr M Klooster (Plaintiffs)
No appearance for defendant
New South Lawyers (Plaintiffs)
No appearance for defendant
File Number(s): 2021/259612 Publication restriction: None
Judgment
Summons
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This is a summons filed by the plaintiffs, Mehul Patel and Jigisha Patel, on 10 September 2021 pursuant to UCPR r 13.1, seeking orders that judgment be entered against the defendant, Caesar Homes Pty Ltd in the sum of $340,000 plus pre-judgment interest calculated in accordance with s 100 of the Civil Procedure Act 2005 (NSW). The plaintiffs also seek consequential orders for costs.
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The background to the proceedings is that the plaintiffs had an historical claim against the defendant for damages in respect of defective building work. On 8 February 2021 that claim was listed for determination in the New South Wales Civil and Administrative Tribunal (“NCAT”) in proceedings numbered HB21/6948. That dispute was resolved by the parties filing consent orders with NCAT. That settlement involved the following terms and timetable:
$30,000 to be paid on or before 16 March 2021.
$100,000 to be paid by 9 April 2021.
$100,000 to be paid by 9 May 2021.
$110,000 to be paid by 8 June 2021.
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The defendant did not make any payments in respect of that agreement. Consequently, the plaintiffs are owed $340,000 plus interest.
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On 16 April 2021, in NCAT, the plaintiffs sought to renew and relist the compromised proceedings in that Tribunal to seek an order that the defendant pay them the moneys owed pursuant to that agreement.
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On 1 July 2021 the renewal application came before NCAT Senior Member Blake SC in the Commercial and Consumer Division. He dismissed the plaintiffs’ proceedings in that Tribunal as he was not satisfied NCAT had jurisdiction to determine the plaintiffs’ claim.
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Consequently, on 10 September 2021 the plaintiffs filed the present summons in this Court. The summons came on for hearing before me today and the defendant has not appeared.
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In support of their summons the plaintiffs read and relied upon the following affidavits: the first plaintiffs' affidavits sworn 27 August 2021 and 18 February 22; the affidavits of Mr Toufic Bazouni, solicitor, sworn 10 September 2021, 18 February 22, and 18 February 22, the latter having been filed by order of the Judicial Registrar on 19 November 2021.
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On reading an additional affidavit of service sworn on 29 October 2021 by Mr John Vitanza, a licensed process server, I am satisfied that the defendant has been duly served with the originating process for these proceedings. The defendant has not entered an appearance in response, and it has not appeared today.
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A procedural question arises as to whether the plaintiff should have proceeded by filing a statement of claim rather than proceeding by way of a summons. In my view, in this case, the question raises a distinction of no practical consequence or disadvantage to any party. Therefore, pursuant to s 14 of the Civil Procedure Act 2005 (NSW), I dispense with the need for the plaintiffs to file an amended originating process.
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On the evidence, I find the plaintiffs have made out their claim for damages for breach of the agreement entered into on 8 February 2021 as claimed. I find they are entitled to a judgment in their favour in the sum of $340,000 plus prejudgment interest calculated pursuant to s 100 of the Civil Procedure Act for the period 8 February 2021 to date. According to published Practice Note interest rates, the interest rate in that period has remained constant at 4.1 per cent. Accordingly, I allow interest at $14,551.07, being 381 days at 4.1 per cent on $340,000.
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I order entry of judgment for the plaintiffs in the sum of $354,551.07, including prejudgment interest. I also order the defendant to pay the plaintiffs' costs of the proceedings. The court book is to remain with the court file pending any further order of the Court. It will be marked as Exhibit “A”.
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Decision last updated: 08 March 2022
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