Pindolia v Casagrande Homes Pty Ltd - [2024] NSWCATCD 46

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Pindolia v Casagrande Homes Pty Ltd [2024] NSWCATCD 46
Hearing dates: 15 February 2024
Date of orders: 02 July 2024
Decision date: 02 July 2024
Jurisdiction: Consumer and Commercial Division
Before: G Sarginson, Senior Member
Decision:
(1) The Respondent Casagrande Homes Pty Ltd is to pay the Applicants Mahendra Pindolia and Deepika Pindolia the sum of $242,640.22 by 28 days from the date of this decision.
(2) The issue of costs is to be determined as follows:
(a) The Applicants are to file with the Tribunal and serve on the Respondent, by person or by post and additionally by email, any further costs submissions and documents by 7 days from the date of this decision.
(b) The Respondent is to file with the Tribunal and serve on the Applicants, by person or by post and additionally by email, any costs submissions and documents by 21 days from the date of this decision.
(c) The Applicants are to file with the Tribunal and serve on the Respondent, by person or by post and additionally by email, any costs submissions in reply by 28 days from the date of this decision.
(d) The costs submissions of the parties are to include whether or not the consent to the Tribunal determining the issue of costs without a further oral hearing, and if not, why not.
(e) Subject to consideration of the costs submissions of the parties the Tribunal may determine the issue of costs on the basis of the written materials and without further oral hearing under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).
(f) If a party seeks an extension of time in respect of costs submissions, an application should be made in writing to the Tribunal no later than the day prior to the date the submissions are due to be filed and served.
(g) Each party must file their costs submissions and documents with the Tribunal in hard copy.

Catchwords:
BUILDING AND CONSTRUCTION---Home building---building defects---extent of defects---whether work order or damages are the appropriate remedy

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW)
Civil and Administrative Tribunal Rules 2014 (NSW)
Home Building Act 1989 (NSW)

Cases Cited:
Bellgrove v Eldridge [1954] HCA 36; (1954) 90 CLR 613
BKB Constructions Pty Ltd v Sawan [2022] NSWCATAP 103
Catapult Constructions Pty Ltd v Denison [2018] NSWCATAP 158
Cornucopia (Young) Pty Ltd v Ward t/as Newcastle Model Autosports and Hobbies [2024] NSWCATAP 109
Deacon v National Strategic Constructions Pty Ltd; National Strategic Constructions Pty Ltd v Deacon [2017] NSWCATAP 185
Fisher v N Phillips and M Phillips t/as Arise Building Services [2022] NSWCATCD 80.
Kurmond Homes Pty Ltd v Marsden [2018] NSWCATAP 23
Leung v Alexakis [2018] NSWCATAP 11
Pollock v NSW Trustee and Guardian [2022] NSWSC 923
Repfix Industries Pty Ltd v FBD Group [2020] NSWDC 514
Robinson v Hindmarsh Construction Australia Pty Ltd [2021] NSWCATAP 51
Ruxley Electronics and Construction Ltd v Forsyth [1996]…

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: [2024] NSWCATCD 46
Decision Date: 02 July 2024

CaseChat Overview and Summary

Pindolia v Casagrande Homes Pty Ltd was a case before the NSW Civil and Administrative Tribunal, where Mahendra and Deepika Pindolia pursued a claim against Casagrande Homes Pty Ltd for building defects in their home. The Pindolia's sought either a work order or damages, arguing that the defects in the construction of their home were significant and warranted a remedy under the Home Building Act 1989 (NSW). The central issue for the Tribunal was to determine whether the appropriate remedy for the defects was the issuance of a work order or the payment of damages, and if so, the amount of damages to be awarded.

The Tribunal considered the nature and extent of the defects, as well as the evidence presented by both parties. The Tribunal found that the defects were significant and affected the structural integrity and functionality of the home. After reviewing the evidence, the Tribunal concluded that issuing a work order would not be an effective remedy as the defects were extensive and the home would need to be substantially reconstructed. The Tribunal decided that damages were the appropriate remedy to compensate the Pindolia's for the cost of rectifying the defects and the diminution in value of the property. The Tribunal awarded the Pindolia's damages in the amount of $242,640.22.

In addition to the award of damages, the Tribunal outlined the process for determining the issue of costs. The Applicants were required to submit their costs by a specified date, and the Respondent had a later deadline to respond. The Tribunal noted that it may determine the issue of costs based on written submissions without a further oral hearing. The Tribunal emphasised the importance of each party filing their costs submissions in hard copy and provided a process for seeking extensions if necessary. This detailed approach ensures that the costs of the proceedings are addressed efficiently and transparently, reflecting the principles of fairness and justice in the resolution of disputes.

Orders

Orders of the court

(1) The Respondent Casagrande Homes Pty Ltd is to pay the Applicants Mahendra Pindolia and Deepika Pindolia the sum of $242,640.22 by 28 days from the date of this decision.

(2) The issue of costs is to be determined as follows:

(a) The Applicants are to file with the Tribunal and serve on the Respondent, by person or by post and additionally by email, any further costs submissions and documents by 7 days from the date of this decision.

(b) The Respondent is to file with the Tribunal and serve on the Applicants, by person or by post and additionally by email, any costs submissions and documents by 21 days from the date of this decision.

(c) The Applicants are to file with the Tribunal and serve on the Respondent, by person or by post and additionally by email, any costs submissions in reply by 28 days from the date of this decision.

(d) The costs submissions of the parties are to include whether or not the consent to the Tribunal determining the issue of costs without a further oral hearing, and if not, why not.

(e) Subject to consideration of the costs submissions of the parties the Tribunal may determine the issue of costs on the basis of the written materials and without further oral hearing under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).

(f) If a party seeks an extension of time in respect of costs submissions, an application should be made in writing to the Tribunal no later than the day prior to the date the submissions are due to be filed and served.

(g) Each party must file their costs submissions and documents with the Tribunal in hard copy.

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:	Pindolia v Casagrande Homes Pty Ltd [2024] NSWCATCD 46
Hearing dates:	15 February 2024
Date of orders:	02 July 2024
Decision date:	02 July 2024
Jurisdiction:	Consumer and Commercial Division
Before:	G Sarginson, Senior Member
Decision:	(1) The Respondent Casagrande Homes Pty Ltd is to pay the Applicants Mahendra Pindolia and Deepika Pindolia the sum of $242,640.22 by 28 days from the date of this decision. (2) The issue of costs is to be determined as follows: (a) The Applicants are to file with the Tribunal and serve on the Respondent, by person or by post and additionally by email, any further costs submissions and documents by 7 days from the date of this decision. (b) The Respondent is to file with the Tribunal and serve on the Applicants, by person or by post and additionally by email, any costs submissions and documents by 21 days from the date of this decision. (c) The Applicants are to file with the Tribunal and serve on the Respondent, by person or by post and additionally by email, any costs submissions in reply by 28 days from the date of this decision. (d) The costs submissions of the parties are to include whether or not the consent to the Tribunal determining the issue of costs without a further oral hearing, and if not, why not. (e) Subject to consideration of the costs submissions of the parties the Tribunal may determine the issue of costs on the basis of the written materials and without further oral hearing under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). (f) If a party seeks an extension of time in respect of costs submissions, an application should be made in writing to the Tribunal no later than the day prior to the date the submissions are due to be filed and served. (g) Each party must file their costs submissions and documents with the Tribunal in hard copy.
Catchwords:	BUILDING AND CONSTRUCTION---Home building---building defects---extent of defects---whether work order or damages are the appropriate remedy
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Home Building Act 1989 (NSW)
Cases Cited:	Bellgrove v Eldridge [1954] HCA 36; (1954) 90 CLR 613 BKB Constructions Pty Ltd v Sawan [2022] NSWCATAP 103 Catapult Constructions Pty Ltd v Denison [2018] NSWCATAP 158 Cornucopia (Young) Pty Ltd v Ward t/as Newcastle Model Autosports and Hobbies [2024] NSWCATAP 109 Deacon v National Strategic Constructions Pty Ltd; National Strategic Constructions Pty Ltd v Deacon [2017] NSWCATAP 185 Fisher v N Phillips and M Phillips t/as Arise Building Services [2022] NSWCATCD 80. Kurmond Homes Pty Ltd v Marsden [2018] NSWCATAP 23 Leung v Alexakis [2018] NSWCATAP 11 Pollock v NSW Trustee and Guardian [2022] NSWSC 923 Repfix Industries Pty Ltd v FBD Group [2020] NSWDC 514 Robinson v Hindmarsh Construction Australia Pty Ltd [2021] NSWCATAP 51 Ruxley Electronics and Construction Ltd v Forsyth [1996]…