Pawar v Willoughby Homes Pty Ltd - [2021] NSWCATCD 161

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Pawar v Willoughby Homes Pty Ltd [2021] NSWCATCD 161
Hearing dates: 27, 28 January 2021
Date of orders: 04 March 2021
Decision date: 04 March 2021
Jurisdiction: Consumer and Commercial Division
Before: Graham Ellis SC, Senior Member
Decision:
1.   The builder is to carry out rectification work in a proper and workmanlike manner in order to address the defects identified as Items 1 to 10 (inclusive) and 25 in the Scott Schedule annexed Mr O’Donnell’s 24 June 2019 report.
2.   Mr O’Donnell (or such other person as he in his sole discretion may nominate if he is unavailable) is to act as an independent expert in relation to that rectification work and not as an advocate for either the owner or the builder.
3.   Any communication by the owner, the builder or the independent expert in relation to these orders is to be in writing and is to be sent to both the other parties.
4.   No later than seven (7) days from the date of this order, the builder is to provide the independent expert with a work method statement which specifies what work the builder proposes to undertake in order to rectify the defects.
5.   No later than seven (7) days from the receipt of that work method statement, the independent expert is to either approve that work method statement or amend it if he considers such an amendment necessary and reasonable.
6.   The owner is to provide reasonable access to the builder who should provide not less than 24 hours’ notice of anyone intending to carry out that rectification work.
7.   There are to be three inspections during the course of the rectification work:
(1) initially, in order to ascertain the current situation,
(2) during the work, at such hold point as the independent expert considers reasonable, and
(3) upon completion of the work.
8.   The rectification work is to be completed within twelve (12) weeks of the date of that approved or amended work method statement, but that period may be extended by such period as the independent expert considers reasonable having regard to matters including but not limited to inclement weather and any movement restrictions due to COVID-19 pandemic.
9.   The cost of the independent expert is to be borne by the builder.
10.   The builder is to pay the owner $3,450 immediately.
11.   On or before 18 March 2021 any application for costs is to be made by providing written submissions to the Tribunal and the other party.
12.   On or before 01 April 2021 any response to any such application is to be made by providing written submissions to the Tribunal and the other party.
13.   Any submissions on costs are to address the question of whether costs can be determined on the papers.

Catchwords:
BUILDING AND CONSTRUCTION - Contract - Defects - Work order
PRACTICE AND PROCEDURE - Renewal proceedings - Whether further work order appropriate

Legislation Cited:
Civil and Administrative Tribunal…

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.

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Details

Case: [2021] NSWCATCD 161
Decision Date: 04 March 2021

CaseChat Overview and Summary

Pawar brought proceedings against Willoughby Homes Pty Ltd, alleging that the builder had failed to rectify defects in a residential property. The case was before the New South Wales Civil and Administrative Tribunal, which had jurisdiction to hear disputes under the Home Building Act 1989. The central issue was whether the Tribunal should issue a further work order for the builder to rectify the defects. Pawar argued that the defects remained unresolved, while the builder contended that it had already completed the required rectification work. The Tribunal needed to determine if a further work order was warranted, given the circumstances of the case.

The Tribunal considered the evidence presented by both parties, including reports from an independent expert, Mr O’Donnell. The builder had provided a work method statement outlining the proposed rectification work. Pawar argued that the work was not completed to a satisfactory standard. The Tribunal examined the content of the work method statement, the builder's performance, and the independent expert's assessment of the defects. The Tribunal found that there were unresolved defects that required rectification and that a further work order was appropriate to ensure that the builder addressed these issues.

The Tribunal issued a comprehensive work order, detailing the rectification work to be carried out by the builder. Pawar was to provide reasonable access to the premises, and the builder was to follow the approved work method statement. Mr O’Donnell was appointed as an independent expert to oversee the rectification work and ensure compliance with the order. The Tribunal also addressed the issue of costs, determining that the builder was to bear the cost of the independent expert and pay a specified sum to Pawar immediately. The orders included provisions for inspections, timelines for completion, and procedures for any future applications regarding costs.

The Tribunal's decision resulted in a detailed work order that outlined the specific steps to be taken by the builder to rectify the defects. Pawar was to provide access, and the builder was to follow the approved work method statement. The independent expert, Mr O’Donnell, was to oversee the process. The builder was required to pay $3,450 to Pawar and bear the cost of the independent expert. The orders also included provisions for inspections, a timeline for completion of the work, and procedures for any future applications for costs.

Orders

Orders of the court

1. The builder is to carry out rectification work in a proper and workmanlike manner in order to address the defects identified as Items 1 to 10 (inclusive) and 25 in the Scott Schedule annexed Mr O’Donnell’s 24 June 2019 report.

2. Mr O’Donnell (or such other person as he in his sole discretion may nominate if he is unavailable) is to act as an independent expert in relation to that rectification work and not as an advocate for either the owner or the builder.

3. Any communication by the owner, the builder or the independent expert in relation to these orders is to be in writing and is to be sent to both the other parties.

4. No later than seven (7) days from the date of this order, the builder is to provide the independent expert with a work method statement which specifies what work the builder proposes to undertake in order to rectify the defects.

5. No later than seven (7) days from the receipt of that work method statement, the independent expert is to either approve that work method statement or amend it if he considers such an amendment necessary and reasonable.

6. The owner is to provide reasonable access to the builder who should provide not less than 24 hours’ notice of anyone intending to carry out that rectification work.

7. There are to be three inspections during the course of the rectification work:

(1) initially, in order to ascertain the current situation,

(2) during the work, at such hold point as the independent expert considers reasonable, and

(3) upon completion of the work.

8. The rectification work is to be completed within twelve (12) weeks of the date of that approved or amended work method statement, but that period may be extended by such period as the independent expert considers reasonable having regard to matters including but not limited to inclement weather and any movement restrictions due to COVID-19 pandemic.

9. The cost of the independent expert is to be borne by the builder.

10. The builder is to pay the owner $3,450 immediately.

11. On or before 18 March 2021 any application for costs is to be made by providing written submissions to the Tribunal and the other party.

12. On or before 01 April 2021 any response to any such application is to be made by providing written submissions to the Tribunal and the other party.

13. Any submissions on costs are to address the question of whether costs can be determined on the papers.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Pawar v Willoughby Homes Pty Ltd [2021] NSWCATCD 161
Hearing dates:	27, 28 January 2021
Date of orders:	04 March 2021
Decision date:	04 March 2021
Jurisdiction:	Consumer and Commercial Division
Before:	Graham Ellis SC, Senior Member
Decision:	1. The builder is to carry out rectification work in a proper and workmanlike manner in order to address the defects identified as Items 1 to 10 (inclusive) and 25 in the Scott Schedule annexed Mr O’Donnell’s 24 June 2019 report. 2. Mr O’Donnell (or such other person as he in his sole discretion may nominate if he is unavailable) is to act as an independent expert in relation to that rectification work and not as an advocate for either the owner or the builder. 3. Any communication by the owner, the builder or the independent expert in relation to these orders is to be in writing and is to be sent to both the other parties. 4. No later than seven (7) days from the date of this order, the builder is to provide the independent expert with a work method statement which specifies what work the builder proposes to undertake in order to rectify the defects. 5. No later than seven (7) days from the receipt of that work method statement, the independent expert is to either approve that work method statement or amend it if he considers such an amendment necessary and reasonable. 6. The owner is to provide reasonable access to the builder who should provide not less than 24 hours’ notice of anyone intending to carry out that rectification work. 7. There are to be three inspections during the course of the rectification work: (1) initially, in order to ascertain the current situation, (2) during the work, at such hold point as the independent expert considers reasonable, and (3) upon completion of the work. 8. The rectification work is to be completed within twelve (12) weeks of the date of that approved or amended work method statement, but that period may be extended by such period as the independent expert considers reasonable having regard to matters including but not limited to inclement weather and any movement restrictions due to COVID-19 pandemic. 9. The cost of the independent expert is to be borne by the builder. 10. The builder is to pay the owner $3,450 immediately. 11. On or before 18 March 2021 any application for costs is to be made by providing written submissions to the Tribunal and the other party. 12. On or before 01 April 2021 any response to any such application is to be made by providing written submissions to the Tribunal and the other party. 13. Any submissions on costs are to address the question of whether costs can be determined on the papers.
Catchwords:	BUILDING AND CONSTRUCTION - Contract - Defects - Work order PRACTICE AND PROCEDURE - Renewal proceedings - Whether further work order appropriate
Legislation Cited:	Civil and Administrative Tribunal…