Sharkawi v AK Building Design and Construction PL

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Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: Sharkawi v AK Building Design and Construction PL [2025] NSWCATCD 33
Hearing dates: 14 August 2024 with re-opening application 15 May 2025
Date of orders: 19 May 2025
Decision date: 16 May 2025
Jurisdiction:Consumer and Commercial Division
Before: G K Burton SC, Senior Member
Decision:

1.    On or before 11 July 2025 the respondent is to perform, by itself and/or by contractors engaged at its cost, the works identified in the report of Ken Winton dated 1 May 2024 in respect of the works the subject of these proceedings and all works reasonably incidental thereto including site preparation and protection, waste removal and disposal, site cleaning and remediation of consequential damage from the works (the building work), in accordance with requirements that include the following:

(a)    the building work is to be carried out with due care and skill and in accord with all applicable laws, codes, standards and requirements of regulatory authorities;

(b)    the building work is to be the subject of all required insurances including HBCF cover (to the extent not already the subject of coverage);

(c)    the building work is to be inspected and certified as required for compliance with all applicable laws, codes, standards and requirements of regulatory authorities;

(d)    the respondent is to carry out further work specified as required to obtain such compliance;

(e)    the respondent is at its cost to arrange and provide on completion to the applicants all certificates required by law, codes, standards, requirements of regulatory authorities and due care and skill relating to the building work.

2.    Grant leave to the applicant to renew these proceedings on or before 10 July 2026 in respect of any alleged non-compliance with order 1.

3.    Order that AK Building Design and Construction PL pay Andrew Sharkawi $86,310 on or before 13 June 2025.

4.    Dismiss the respondent’s application for leave to re-open filed 15 May 2025.

5.    Order that the respondent pay the applicant’s costs of the proceedings on the ordinary basis in the lump sum amount of $9,651.

Catchwords:

BUILDING AND CONSTRUCTION – HOME BUILDING – alleged breach of statutory warranties – successor in title – identity of builder - work order or money order – Home Building Act 1989 (NSW) ss 18B, 18D, 18E, 18G 48MA

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Civil and Administrative Tribunal Rules 2014 (NSW)

Design and Building Practitioners Act 2020 (NSW)

Home Building Act 1989 (NSW)

Home Building Regulation 2014 (NSW)

Cases Cited:
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Details
Case
[2025] NSWCATCD 33
Decision Date

CaseChat Overview and Summary

The matter in Sharkawi v AK Building Design and Construction PL involved a dispute between Andrew Sharkawi and AK Building Design and Construction PL. Sharkawi alleged that AK Building had failed to complete certain building works in accordance with the statutory warranties set out in the Home Building Act 1989 (NSW). The dispute was heard by the New South Wales Civil and Administrative Tribunal, which had jurisdiction over home building disputes under the Act. The central issue for the Tribunal was whether AK Building, which had been acquired by another entity, remained responsible for the completion of the statutory warranties despite the change in ownership. The Tribunal also needed to determine the nature of the order to be made against AK Building – whether it should be a work order or a money order – and whether Sharkawi was entitled to additional damages.

The Tribunal found that AK Building, as the successor in title to the original builder, was indeed responsible for the completion of the statutory warranties. The Tribunal rejected AK Building's argument that it should be discharged from liability due to the change in ownership. In terms of the order, the Tribunal concluded that a work order was appropriate, as it would ensure the works were completed to the required standard. However, it also found that Sharkawi was entitled to additional damages of $86,310, which reflected the cost of completing the works. The Tribunal dismissed AK Building's application to re-open the case, finding it to be without merit. The final orders required AK Building to complete the works, pay Sharkawi the damages, and cover Sharkawi's costs.

Orders

Orders of the court

1. On or before 11 July 2025 the respondent is to perform, by itself and/or by contractors engaged at its cost, the works identified in the report of Ken Winton dated 1 May 2024 in respect of the works the subject of these proceedings and all works reasonably incidental thereto including site preparation and protection, waste removal and disposal, site cleaning and remediation of consequential damage from the works (the building work), in accordance with requirements that include the following:

(a) the building work is to be carried out with due care and skill and in accord with all applicable laws, codes, standards and requirements of regulatory authorities;

(b) the building work is to be the subject of all required insurances including HBCF cover (to the extent not already the subject of coverage);

(c) the building work is to be inspected and certified as required for compliance with all applicable laws, codes, standards and requirements of regulatory authorities;

(d) the respondent is to carry out further work specified as required to obtain such compliance;

(e) the respondent is at its cost to arrange and provide on completion to the applicants all certificates required by law, codes, standards, requirements of regulatory authorities and due care and skill relating to the building work.

2. Grant leave to the applicant to renew these proceedings on or before 10 July 2026 in respect of any alleged non-compliance with order 1.

3. Order that AK Building Design and Construction PL pay Andrew Sharkawi $86,310 on or before 13 June 2025.

4. Dismiss the respondent’s application for leave to re-open filed 15 May 2025.

5. Order that the respondent pay the applicant’s costs of the proceedings on the ordinary basis in the lump sum amount of $9,651.

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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