Petkovski and Hawe v Basbuilt Developments Pty Ltd - [2024] NSWCATCD 62

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Petkovski and Hawe v Basbuilt Developments Pty Ltd [2024] NSWCATCD 62
Hearing dates: 15 and 16 April 2024
Date of orders: 11 November 2024
Decision date: 11 November 2024
Jurisdiction: Consumer and Commercial Division
Before: M Tyson, Senior Member
Decision:
(1) The respondent is ordered to pay the applicants $117,600.00 immediately;
(2) Direct the applicants, by 20 November 2024, to serve on the respondent a draft document setting out the terms of a proposed work order under s. 48MA of the Home Building Act, that reflects the findings set out in this judgment;
(3) If the respondent does not agree to the terms of the applicants’ proposed work order that reflects the findings set out in this judgment, direct the respondent, by 27 November 2024, to lodge with the Sydney registry of the Tribunal and serve on the respondent, a memorandum (no more than three pages in length) explaining the reasons for the respondent’s opposition to the applicants’ proposed work order;
(4) If the respondent does not agree to the terms of the applicants’ proposed work order that reflects the findings set out in this judgment, direct the applicants, by 27 November 2024, to lodge with the Sydney registry of the Tribunal and serve on the respondent, a document setting out the terms of a proposed work order that reflects the findings set out in this judgment
(5) Leave is granted to the applicants to adduce further evidence limited to the rectification work needed to address the defects in the masonry wall that have been found by the Tribunal;
(6) List the proceedings before me for a short hearing, on a date convenient to the Registry and the parties, after 27 November 2024, with a view to (a) making directions for the serving of evidence and submissions limited to the rectification work needed to address the defects in the masonry wall that have been found by the Tribunal, (b) to hear submissions and decide, if necessary, any dispute about the applicants’ proposed work order, contemplated by the orders made above; and (c) hear submissions and decide, any applications for a costs order;
(7) The application is otherwise dismissed;
(8) Direct that if any party seeks a costs order, that party should, by the close of business on 20 November 2024, file with the Registry and serve on the other party, the terms of any costs order contended for, evidence (if any) relevant to the question of costs, and a short outline of submissions (that is no more than three pages in length) in support of the application for a costs order;
(9) Direct that if any party opposes a costs order proposed by the other party, that party should, 2 business days before any hearing listed in accordance with order 6 above, file with the Registry and serve on the other party, evidence (if any) relevant to the question of costs, and a short outline of submissions (that is no…

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

AGLC: Petkovski and Hawe v Basbuilt Developments Pty Ltd [2024] NSWCATCD 62
Case: [2024] NSWCATCD 62
Decision Date: 11 November 2024

CaseChat Overview and Summary

Petkovski and Hawe brought an action against Basbuilt Developments Pty Ltd in the NSW Civil and Administrative Tribunal. The dispute centred on the construction of a building and the quality of the work performed, as well as the enforcement of a liquidated damages clause. The applicants sought compensation for defects in the building's construction, which they attributed to the respondent's failure to meet contractual obligations and statutory standards under the Home Building Act 1989 (NSW). The primary issues the tribunal needed to resolve included whether the respondent was liable for the defects, the appropriate quantum of damages, and the validity and enforceability of the liquidated damages clause in the contract.

The tribunal found that the respondent was indeed liable for the defects in the construction work, as the evidence presented by the applicants demonstrated that the defects were due to the respondent's failure to adhere to contractual obligations and statutory requirements. The tribunal awarded the applicants $117,600.00 as compensation for the defects, which represented the out-of-pocket expenses incurred by the applicants. The tribunal also considered the expert evidence provided by the applicants and found it sufficient to establish the nature and cause of the defects. The tribunal noted that the respondent did not provide any countervailing evidence to dispute the applicants' claims. Regarding the liquidated damages clause, the tribunal held that it was enforceable as it was a genuine pre-estimate of the loss likely to be caused by the breach of contract.

The tribunal further directed the applicants to prepare a draft work order under section 48MA of the Home Building Act, reflecting the findings of the tribunal. If the respondent disagreed with the proposed work order, it was required to provide a memorandum explaining the reasons for its opposition. The tribunal granted the applicants leave to adduce further evidence related to the rectification work needed to address the defects in the masonry wall. The tribunal also scheduled a short hearing to make further directions regarding the serving of evidence and submissions, to hear any disputes about the proposed work order, and to decide on any applications for a costs order. The tribunal directed that if any party sought a costs order, they should file relevant evidence and a short outline of submissions by a specified date. If opposing a costs order, the party was to file relevant evidence and a short outline of submissions two business days before the hearing. The tribunal granted liberty to the parties to file consent orders if they resolved any extant issues by a specified date.

Orders

Orders of the court

(1) The respondent is ordered to pay the applicants $117,600.00 immediately;

(2) Direct the applicants, by 20 November 2024, to serve on the respondent a draft document setting out the terms of a proposed work order under s. 48MA of the Home Building Act, that reflects the findings set out in this judgment;

(3) If the respondent does not agree to the terms of the applicants’ proposed work order that reflects the findings set out in this judgment, direct the respondent, by 27 November 2024, to lodge with the Sydney registry of the Tribunal and serve on the respondent, a memorandum (no more than three pages in length) explaining the reasons for the respondent’s opposition to the applicants’ proposed work order;

(4) If the respondent does not agree to the terms of the applicants’ proposed work order that reflects the findings set out in this judgment, direct the applicants, by 27 November 2024, to lodge with the Sydney registry of the Tribunal and serve on the respondent, a document setting out the terms of a proposed work order that reflects the findings set out in this judgment

(5) Leave is granted to the applicants to adduce further evidence limited to the rectification work needed to address the defects in the masonry wall that have been found by the Tribunal;

(6) List the proceedings before me for a short hearing, on a date convenient to the Registry and the parties, after 27 November 2024, with a view to (a) making directions for the serving of evidence and submissions limited to the rectification work needed to address the defects in the masonry wall that have been found by the Tribunal, (b) to hear submissions and decide, if necessary, any dispute about the applicants’ proposed work order, contemplated by the orders made above; and (c) hear submissions and decide, any applications for a costs order;

(7) The application is otherwise dismissed;

(8) Direct that if any party seeks a costs order, that party should, by the close of business on 20 November 2024, file with the Registry and serve on the other party, the terms of any costs order contended for, evidence (if any) relevant to the question of costs, and a short outline of submissions (that is no more than three pages in length) in support of the application for a costs order;

(9) Direct that if any party opposes a costs order proposed by the other party, that party should, 2 business days before any hearing listed in accordance with order 6 above, file with the Registry and serve on the other party, evidence (if any) relevant to the question of costs, and a short outline of submissions (that is no more than two pages in length) in opposition to the costs order sought against it;

(10) If any orders resolving the extant issues are consented to by the other party, the parties are granted liberty, until the close of business on 27 November 2024, to file with the Tribunal signed consent orders dealing with those extant issues.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Petkovski and Hawe v Basbuilt Developments Pty Ltd [2024] NSWCATCD 62
Hearing dates:	15 and 16 April 2024
Date of orders:	11 November 2024
Decision date:	11 November 2024
Jurisdiction:	Consumer and Commercial Division
Before:	M Tyson, Senior Member
Decision:	(1) The respondent is ordered to pay the applicants $117,600.00 immediately; (2) Direct the applicants, by 20 November 2024, to serve on the respondent a draft document setting out the terms of a proposed work order under s. 48MA of the Home Building Act, that reflects the findings set out in this judgment; (3) If the respondent does not agree to the terms of the applicants’ proposed work order that reflects the findings set out in this judgment, direct the respondent, by 27 November 2024, to lodge with the Sydney registry of the Tribunal and serve on the respondent, a memorandum (no more than three pages in length) explaining the reasons for the respondent’s opposition to the applicants’ proposed work order; (4) If the respondent does not agree to the terms of the applicants’ proposed work order that reflects the findings set out in this judgment, direct the applicants, by 27 November 2024, to lodge with the Sydney registry of the Tribunal and serve on the respondent, a document setting out the terms of a proposed work order that reflects the findings set out in this judgment (5) Leave is granted to the applicants to adduce further evidence limited to the rectification work needed to address the defects in the masonry wall that have been found by the Tribunal; (6) List the proceedings before me for a short hearing, on a date convenient to the Registry and the parties, after 27 November 2024, with a view to (a) making directions for the serving of evidence and submissions limited to the rectification work needed to address the defects in the masonry wall that have been found by the Tribunal, (b) to hear submissions and decide, if necessary, any dispute about the applicants’ proposed work order, contemplated by the orders made above; and (c) hear submissions and decide, any applications for a costs order; (7) The application is otherwise dismissed; (8) Direct that if any party seeks a costs order, that party should, by the close of business on 20 November 2024, file with the Registry and serve on the other party, the terms of any costs order contended for, evidence (if any) relevant to the question of costs, and a short outline of submissions (that is no more than three pages in length) in support of the application for a costs order; (9) Direct that if any party opposes a costs order proposed by the other party, that party should, 2 business days before any hearing listed in accordance with order 6 above, file with the Registry and serve on the other party, evidence (if any) relevant to the question of costs, and a short outline of submissions (that is no…