Patel v Caesar Homes Pty Ltd

[2021] NSWCATCD 47

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Patel v Caesar Homes Pty Ltd [2021] NSWCATCD 47

Hearing dates:

29 June 2021

Date of orders:

1 July 2021

Decision date:

01 July 2021

Jurisdiction:

Consumer and Commercial Division

Before:

G Blake AM SC, Senior Member

Decision:

(1)   The proceedings are dismissed.

Catchwords:

CIVIL PROCEDURE — Jurisdiction — Renewal of proceedings in the Consumer and Commercial Division of NCAT – Whether condition in cl 8 of Sch 4 of the Civil and Administrative Tribunal Act 2013 (NSW) has been satisfied

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW), Sch 4, cl 8

Civil and Administrative Tribunal Rules 2014 (NSW), r 35

Home Building Act 1989 (NSW), s 48O

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Mehul Patel and Jigisha Patel (Applicants)
Caesar Homes Pty Ltd (Respondent)

File Number(s):

HB 21/16948

Publication restriction:

Nil

REASONS FOR DECISION

Overview

1. In these proceedings the applicants, Mehul Patel (Mr Patel) and Jigisha Patel (Ms Patel), who are the owners, seek against the respondent, Caesar Homes Pty Ltd, who is the builder, an order for the payment of $340,000.00 under s 48O(1)(a) of the Home Building Act 1989 (NSW) (HB Act).

2. I have decided that the proceedings should be dismissed.

The background

3. The applicants and the respondent entered in to contract whereby the respondent agreed to carry out residential builder work.

4. A dispute arose between the applicants and the respondent.

5. On 1 December 2019, the applicants commenced proceedings HB 19/53710 under the HB Act against the respondent.

6. On 8 February 2021, the Tribunal made the following orders and noted the agreement between the parties in proceedings HB 19/53710 (the 8 February 2021 orders):

“1. The Applicant withdraws their claim against all Respondents pursuant to 55(1)(a) of the Civil & Administrative Tribunal Act 2013 (NSW) with no order as to costs as between those parties with the intention that each party bears their own costs.

2. Leave is granted for the Applicants to renew the proceedings against Caesar Homes Pty Ltd at any time within the next 12 months upon default of the agreement set out below.

3. Liberty to restore on the giving of 7 days notice.

Notation

4. The Tribunal notes the binding agreement entered into between the parties on the following terms:

5. Caesar Homes Pty Ltd (the Respondent) to pay the Applicants the sum of $340,000.00 in the following manner:

(a) $30,000.00 on or before 10 March 2021 being 30 days from the date of these Orders;

(b) $100,000.00 on or before 9 April 2021 being 60 days from the date of these Orders;

(c) $100,000.00 on or before 9 May 2021 being 90 days from the date of these Orders; and

(d) $110,000.00 on or before 8 June 2021 being 120 days from the date of these Orders.

6. All payments to be made to the following account, with all monies to have cleared and be in immediately available funds by each date referred to in 5 above:

New South Lawyers Law Practice Trust Account

BSB 112 879

Account No. 424 089 424

7. In the event that moneys have not cleared by the date referred to above:

(a) Applicants or their Solicitors to notify the Respondent by sending an email to the following email addresses providing a further 7 days for payment to be made and funds to clear within those 7 days:

(i) [email protected]

(ii) [email protected]

(b) In the event that notice has been provided and funds have not cleared within the 7 days, the Applicants are entitled to a money order in renewed proceedings in the amount of $340,000.00 less payments made by the Respondent.

8. The parties agree that the Respondent is not entitled to raise any Defence, Cross-Claim or set off with respect to a money order being made. Provided the Applicants establish that a notification was sent to the email addresses referred to in 7 above and the default in making payment, the money order will be made on the terms set out above against the Respondent in the renewed proceedings.”

7. Subsequent to 8 February 2021, no payments were made by the respondent into the trust account specified in paragraph 5 of the 8 February 2021 orders.

8. On 11 March 2021 at 11.40am, the applicants’ lawyer, Toufic Bazouni (Mr Bazouni), sent an email to the email addresses specified in paragraph 7 of the 8 February 2021 orders attaching a letter dated 11 March 2021 addressed to the respondent’s lawyers, CB Jai Lawyers, giving notice to the respondent to pay the sum of $30,000.00 into their trust account.

The procedural history

9. On 16 April 2021, the applicants commenced proceedings HB 21/16948 against the respondent by filing the following documents:

1. a renewal of proceedings application in which they relevantly seek an order for the payment of $340,000.00;

2. the affidavit of Mr Patel sworn on 12 April 2021 (the Patel affidavit);

3. the affidavit of Mr Bazouni sworn on 12 April 2021 (the Bazouni affidavit).

10. On 22 April 2021, the Registrar sent by post a notice of directions hearing by telephone at 9.15am on 1 June 2021 to the three different addresses held for the respondent including 10/4 Gladstone Road, Castle Hill NSW 2154 which is the address of its registered office (the registered office address). None of these notices were returned unclaimed to the Registry.

11. On 1 June 2021, the Tribunal made the following orders at a directions hearing (the 1 June orders):

“1. By Determination of member, on 01 June 2021 the hearing was adjourned to a date to be fixed by the Registrar.

2. This is a Renewal proceeding. In the original proceedings, the parties noted a binding agreement for payment of $340,000 (HB 19/53710). Condition 7b of that order noted that In the event that notice has been provided and funds have not cleared within 7 days the applicants are entitled to a money order in renewed proceedings in the amount of $340,000 less payments made by the respondents.

3. This matter is set down for a final hearing of 90 minutes for the money order to be entered (with a payment date).

4. The respondents shall file and serve any evidence or submission why the order for $340,000 should not be made, such evidence or submission to be filed and served by 15 June 2021.

5. In the absence of any submissions or evidence the money order will be made on the next occasion.

6. The registry should give this matter some listing priority, if possible.

7. Leave is granted to all parties to be legally represented.

A separate written notice of the new hearing date will be sent to you in the near future.”

12. On 1 June 2021, the Registry sent by post notice of the 1 June orders to the three different addresses held for the respondent including the registered office address. None of these notices were returned unclaimed to the Registry.

13. On 3 June 2021, the Registrar sent by post a notice of contested hearing by telephone at 2.45pm on 29 June 2021 to the three different addresses held for the respondent including the registered office address (the 3 June 2021 notice). None of these notices were returned unclaimed to the Registry.

14. The respondent did not provide any evidence to the Registry in response to the 1 June orders.

The hearing

15. On 29 June 2021 at 2.45pm, the hearing took place by telephone. Mr Patel appeared for Ms Patel and himself. There was no appearance for the respondent. There was no answer when I contacted the respondent by telephone on each of the two telephone numbers held by the Registry at 3.00pm and 3.02pm respectively.

16. The applicants rely on the following documents which were admitted into evidence:

1. the Bazouni affidavit (Ex A1);

2. the Patel affidavit (Ex A2).

17. Mr Patel indicated that the applicants’ claim is limited to $340,000.00. He abandoned the claims for interest and costs referred to in the Patel affidavit.

The issues

18. The following issues arise for decision:

1. whether the proceedings should be heard in the absence of the respondent;

2. whether the applicants are entitled to a money order for $340,000.00 against the respondent.

Whether the proceedings should be heard in the absence of the respondent

19. I am satisfied that the Registry served the 3 June 2021 notice on the respondent.

20. As the condition in r 35(2)(a) of the Civil and Administrative Tribunal Rules 2014 (NSW) has been satisfied, I have decided to exercise the discretion under this rule to proceed with the hearing in the absence of the respondent.

Whether the applicants are entitled to a money order for $340,000.00 against the respondent

Introduction

21. Before considering this issue, it is appropriate to set out the applicable statutory provisions.

The applicable statutory provisions

HB Act

22. Part 3A Division 5 (ss 48N-48U) of HB Act contains provisions dealing with the powers of the Tribunal. Section 48O(1) sets out orders that may be made by the Tribunal, and relevantly provides:

48O Powers of Tribunal

(1) In determining a building claim, the Tribunal is empowered to make one or more of the following orders as it considers appropriate—

(a) an order that one party to the proceedings pay money to another party or to a person specified in the order, whether by way of debt, damages or restitution, or refund any money paid by a specified person,

…

NCAT Act

23. Clause 8 of Sch 4 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) deals with the renewal of proceedings in the Consumer and Commercial Division, and relevantly provides:

8 Renewal of proceedings in respect of certain Division decisions

(1) If the Tribunal makes an order in exercise of a Division function in proceedings, the Tribunal may, when the order is made or later, give leave to the person in whose favour the order is made to renew the proceedings if the order is not complied with within the period specified by the Tribunal.

(2) If an order has not been complied with within the period specified by the Tribunal, the person in whose favour the order was made may renew the proceedings to which the order relates by lodging a notice with the Tribunal, within 12 months after the end of the period, stating that the order has not been complied with.

(3) The provisions of this Act apply to a notice lodged in accordance with subclause (2) as if the notice were a new application made in accordance with this Act.

(4) When proceedings have been renewed in accordance with this clause, the Tribunal—

(a) may make any other appropriate order under this Act or enabling legislation as it could have made when the matter was originally determined, or

(b) may refuse to make such an order.

…

Consideration

24. I am not satisfied that the Tribunal has jurisdiction to hear and determine the applicants’ claim for the following reasons:

1. the 8 February 2021 orders do not include an order that the respondent pay any money to the applicants. Relevantly these orders note a binding agreement between the parties which in clause 5 records a contractual obligation of the respondent to pay $340,000.00 to the applicants by four instalments over a period of three months;

2. the only orders contained in the 8 February 2021 orders are contained in paragraphs 1 to 3 which deal with the costs of the proceedings, leave to renew the proceedings and the restoration of the proceedings on notice;

3. the condition for the renewal of proceedings specified in subcl 8(2) of Sch 4 of the NCAT Act is “an order has not been complied with within the period specified by the Tribunal”;

4. as the condition for the renewal of proceedings specified in subcl 8(2) of Sch 4 of the NCAT Act has not been satisfied:

1. the applicants have had no entitlement under that subclause to renew the proceedings;

2. the Tribunal has no power under subcl 8(4)(a) of Sch 4 of the NCAT Act may make any other appropriate order under the HB Act including a money order under s 48O(1)(a) of the HB Act as it could have made when the matter was originally determined.

25. As the Tribunal does not have jurisdiction to hear and determine the applicants’ claim, it follows that the proceedings must be dismissed.

Order

26. I make the following order:

1. the proceedings are dismissed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 17 August 2021