Sharma v Manhattan Custom Homes Pty Ltd - [2025] NSWCATCD 89

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Sharma v Manhattan Custom Homes Pty Ltd [2025] NSWCATCD 89
Hearing dates: 23 August 2024
Date of orders: 2 June 2025 (Amended 26 June 2025)
Decision date: 02 June 2025
Jurisdiction: Consumer and Commercial Division
Before: D Goldstein, Senior Member
Decision:
The Tribunal makes the following amended orders under section 63 of the Civil Administrative Tribunal Act 2013:
(1) Manhattan Custom Homes Pty Ltd must carry out all work required by and perform all of its obligations, including the obligation to do the work with due diligence, under the NSW Government home building contract for work over $20,000 which it signed with Ashish Sharma on 2 April 2022 in accordance with all terms conditions and covenants contained in the contract.
(2) Manhattan Custom Homes Pty Ltd must also carry out and complete all defect rectification work referred to at pages 14, 15 and 16 of the expert report of Mr Craig Nisbett dated 5 April 2024, except items 2, 3, 4 and 6.
(3) In the event that a party is minded to make an application for costs, such application must be lodged in the Tribunal and served on/given to the costs respondent within 14 days of the date of the orders in these proceedings either attaching or referring to the documents relied upon in support of the application.
(4) The costs respondent will have 14 days after the date it receives the application to lodge in the Tribunal and serve on/give to the costs applicant its submissions, if any, in response to the costs application, such submissions either attaching or referring to the documents relied upon.
(5) The parties must state in their submissions whether or not they consent to the costs application being determined on the basis of the parties written submissions and attached documents, if any, without the need for a hearing.
(6) Subject to the parties’ submissions, the Tribunal will determine any costs application made on the basis of the submissions and papers filed in the Tribunal.

Catchwords:
BUILDING and CONSTUCTION – NSW Government home building contract for work over $20,000 – Contract not terminated at the time of the hearing – Notice of suspension – Meaning of ‘prevents the contractor from carrying on the work’ – Clause 24

Legislation Cited:
Home Building Act 1989

Cases Cited:
Brewarrina Shire Council v Beckhaus Civil Pty Ltd [2005] NSWCA 248
Fox v Percy [2003] HCA 22
Little v J & K Homes Pty Ltd [2017] NSWCATAP 84
Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58; (2005) 221 ALR 448
Verma v Udhay Pty Ltd (Unreported, Consumer and Commercial Division, 7 February 2024)

Texts Cited:
None cited

Category: Principal judgment
Parties: Ashish Sharma (Applicant)
Manhattan Custom Homes Pty Ltd (Respondent)
Representation:
Counsel:
J Pearson (Respondent)
Solicitors:
Roberts Crosbie Mortensen Lawyers (Applicant)
Onelaw (Respondent)

File Number(s): 2023/00368991
Publication restriction: Nil

REASONS FOR DECISION

The parties entered into a NSW Government home building contract for work over $20,000…

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: [2025] NSWCATCD 89
Decision Date: 02 June 2025

CaseChat Overview and Summary

In the matter of Ashish Sharma versus Manhattan Custom Homes Pty Ltd, the dispute arose from a NSW Government home building contract for work over $20,000. Mr Sharma, the home owner, lodged a complaint with the Civil Administrative Tribunal (CAT) alleging that Manhattan Custom Homes Pty Ltd had failed to complete the work in accordance with the contract terms. At the time of the hearing, the contract had not been terminated. The key issue before the Tribunal was the interpretation of clause 24 of the contract, specifically the meaning of the phrase "prevents the contractor from carrying on the work" in the context of a notice of suspension.

The Tribunal examined the meaning of clause 24 and whether the actions of Manhattan Custom Homes Pty Ltd amounted to preventing the contractor from carrying on the work. The Tribunal concluded that the phrase in question was intended to cover situations where the contractor was entirely unable to proceed with the work, rather than temporary interruptions or delays. Based on the evidence presented, the Tribunal determined that Manhattan Custom Homes Pty Ltd had not sufficiently demonstrated that it was entirely unable to carry on the work.

Consequently, the Tribunal ordered that Manhattan Custom Homes Pty Ltd must complete all required work under the contract and defect rectification work, with certain exceptions. The Tribunal also set out a process for any party seeking to apply for costs, including a requirement for the parties to indicate whether they consented to the application being determined on written submissions. The Tribunal retained the discretion to determine any costs application based on the submissions and papers filed.

Orders

Orders of the court

The Tribunal makes the following amended orders under section 63 of the Civil Administrative Tribunal Act 2013:

(1) Manhattan Custom Homes Pty Ltd must carry out all work required by and perform all of its obligations, including the obligation to do the work with due diligence, under the NSW Government home building contract for work over $20,000 which it signed with Ashish Sharma on 2 April 2022 in accordance with all terms conditions and covenants contained in the contract.

(2) Manhattan Custom Homes Pty Ltd must also carry out and complete all defect rectification work referred to at pages 14, 15 and 16 of the expert report of Mr Craig Nisbett dated 5 April 2024, except items 2, 3, 4 and 6.

(3) In the event that a party is minded to make an application for costs, such application must be lodged in the Tribunal and served on/given to the costs respondent within 14 days of the date of the orders in these proceedings either attaching or referring to the documents relied upon in support of the application.

(4) The costs respondent will have 14 days after the date it receives the application to lodge in the Tribunal and serve on/give to the costs applicant its submissions, if any, in response to the costs application, such submissions either attaching or referring to the documents relied upon.

(5) The parties must state in their submissions whether or not they consent to the costs application being determined on the basis of the parties written submissions and attached documents, if any, without the need for a hearing.

(6) Subject to the parties’ submissions, the Tribunal will determine any costs application made on the basis of the submissions and papers filed in the Tribunal.

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

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Medium Neutral Citation:	Sharma v Manhattan Custom Homes Pty Ltd [2025] NSWCATCD 89
Hearing dates:	23 August 2024
Date of orders:	2 June 2025 (Amended 26 June 2025)
Decision date:	02 June 2025
Jurisdiction:	Consumer and Commercial Division
Before:	D Goldstein, Senior Member
Decision:	The Tribunal makes the following amended orders under section 63 of the Civil Administrative Tribunal Act 2013: (1) Manhattan Custom Homes Pty Ltd must carry out all work required by and perform all of its obligations, including the obligation to do the work with due diligence, under the NSW Government home building contract for work over $20,000 which it signed with Ashish Sharma on 2 April 2022 in accordance with all terms conditions and covenants contained in the contract. (2) Manhattan Custom Homes Pty Ltd must also carry out and complete all defect rectification work referred to at pages 14, 15 and 16 of the expert report of Mr Craig Nisbett dated 5 April 2024, except items 2, 3, 4 and 6. (3) In the event that a party is minded to make an application for costs, such application must be lodged in the Tribunal and served on/given to the costs respondent within 14 days of the date of the orders in these proceedings either attaching or referring to the documents relied upon in support of the application. (4) The costs respondent will have 14 days after the date it receives the application to lodge in the Tribunal and serve on/give to the costs applicant its submissions, if any, in response to the costs application, such submissions either attaching or referring to the documents relied upon. (5) The parties must state in their submissions whether or not they consent to the costs application being determined on the basis of the parties written submissions and attached documents, if any, without the need for a hearing. (6) Subject to the parties’ submissions, the Tribunal will determine any costs application made on the basis of the submissions and papers filed in the Tribunal.
Catchwords:	BUILDING and CONSTUCTION – NSW Government home building contract for work over $20,000 – Contract not terminated at the time of the hearing – Notice of suspension – Meaning of ‘prevents the contractor from carrying on the work’ – Clause 24
Legislation Cited:	Home Building Act 1989
Cases Cited:	Brewarrina Shire Council v Beckhaus Civil Pty Ltd [2005] NSWCA 248 Fox v Percy [2003] HCA 22 Little v J & K Homes Pty Ltd [2017] NSWCATAP 84 Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58; (2005) 221 ALR 448 Verma v Udhay Pty Ltd (Unreported, Consumer and Commercial Division, 7 February 2024)
Texts Cited:	None cited
Category:	Principal judgment
Parties:	Ashish Sharma (Applicant) Manhattan Custom Homes Pty Ltd (Respondent)
Representation:	Counsel: J Pearson (Respondent) Solicitors: Roberts Crosbie Mortensen Lawyers (Applicant) Onelaw (Respondent)
File Number(s):	2023/00368991
Publication restriction:	Nil