Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Su v Winning Builders Pty Ltd [2024] NSWCATCD 44 Hearing dates: 18 & 19 January 2023, 6 & 7 November 2023, Written Submissions dated 8 December 2023, 12 February 2024 & 11 March 2024 Date of orders: 13 June 2024 Decision date: 13 June 2024 Jurisdiction: Consumer and Commercial Division Before: D G Charles, Senior Member Decision: 1 Within 28 days of the date of these orders, the Respondent is to pay to the Applicants, the amount of $15,342.16.
2 A work order is made pursuant to s 48O(1)(c) of the Home Building Act 1989 NSW, on the terms and conditions as set out in [191] of the Reasons.
3 If any party seeks an order for costs of the Proceeding, orders and directions are made, as set out in [193] of the Reasons.
Catchwords: BUILDING AND CONSTRUCTION – application of s 48O(1)(c) of the Home Building Act 1989 NSW – jurisdiction & discretion - work order to include items of incomplete work – other terms and conditions of work order - third party contractor condition in work order – no structural columns direction in work order - delay damages to owners – no contract price adjustment.
Legislation Cited: Home Building Act 1989 NSW
Cases Cited: Brewarrina Shire Council v Beckhaus Civil Pty Ltd [2005] NSWCA 248
Little v J & K Homes Pty Ltd [2017] NSWCATAP 84
Project 4301 Pty Ltd v Buildcarp Constructions Pty Ltd [2022] NSWCATCD 30
Precise Builders (NSW) Pty Ltd v Hones & Krel [2018] NSWCATAP 112
Bellgrove v Eldridge [1954] HCA 36; (1954) 90 CLR 613
Aytul Ak Tankiz v Ferat Ak & Ramazan Ak [2014] NSWSC 1044
Tomlin v Ford Credit Australia [2005] NSWSC 540
Onassis v Vergottis [1968] 2 Lloyd’s Rep 403
Textralian Enterprises v Perpetual Trustees (Victoria) Limited [2000] NSWCA 176
HM&O Investments v Ingram [2012] NSWSC 958
ET-China.com International Holdings Ltd v Cheung [2021] NSWCA 24
Wright v Foresight Constructions Pty Ltd [2011] NSWCA 327
Paraiso v CBS Build Pty Ltd (2020) NSWSC 190
Bannister & Hunter v Transition Resort Holdings (No 3) (2013) NSWSC 1943
Tabcorp Holdings Ltd v Bowen Investments Pty Ltd [2009] HCA 8; (2009) 236 CLR 272
Westpoint Management Ltd v Chocolate Factory Apartments Ltd; Chocolate Factory Apartments v Westpoint Finance [2007] NSWCA 253
Owners SP 92450 v JKN Para 1 Pty Limited [2023] NSWCA 114
Brambles Holdings v Bathurst City Council [2001] NSWCA 61
Hadley v Baxendale [1854] EngR 296; (1854) 9 Ex 341; (1854) 156 ER 145
Texts Cited: None cited.
Category: Principal judgment Parties: Jiam Yu Su (First Applicant)
Bao Ling Zhao (Second Applicant)
Winning Builders Pty Ltd (Respondent)Representation: Counsel:
M Klooster (Applicants)
D Hughes & R Sud (Respondent)
Solicitors:
Construction Legal (Applicants)
Doyles Construction Lawyers (Respondent)
File Number(s): 2022/00430188 (formerly HB 22/18103) Publication restriction: Unrestricted
REASONS FOR…
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- AGLC
- Su v Winning Builders Pty Ltd [2024] NSWCATCD 44
- Case
- [2024] NSWCATCD 44
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the tribunal had the jurisdiction and discretion to make a work order that included the completion of items of incomplete work, and if so, what terms and conditions should be attached to the order. The court also had to determine whether the inclusion of a condition requiring the respondent to engage a third party contractor was appropriate, and whether the applicants were entitled to delay damages. Furthermore, the court needed to decide if the applicants were entitled to an adjustment to the contract price for the defective work.
The tribunal held that it had the jurisdiction and discretion to make a work order under s 48O(1)(c) of the Home Building Act 1989 NSW, and that the order should include the completion of the incomplete work. The court considered that the applicants were entitled to delay damages for the period of the delay caused by the respondent’s failure to complete the works within a reasonable time. The tribunal found that the inclusion of a condition requiring the respondent to engage a third party contractor was appropriate, given the circumstances of the case. However, the court declined to make an order for an adjustment to the contract price, as it found that the applicants had not provided sufficient evidence to support such a claim.
In summary, the tribunal made a work order in favour of the applicants, ordering the respondent to complete the incomplete work within 28 days and to pay delay damages of $15,342.16. The order also included a condition requiring the respondent to engage a third party contractor to carry out certain aspects of the work. The tribunal declined to make an order for an adjustment to the contract price.
Orders
Orders of the court
1 Within 28 days of the date of these orders, the Respondent is to pay to the Applicants, the amount of $15,342.16.
2 A work order is made pursuant to s 48O(1)(c) of the Home Building Act 1989 NSW, on the terms and conditions as set out in [191] of the Reasons.
3 If any party seeks an order for costs of the Proceeding, orders and directions are made, as set out in [193] of the Reasons.
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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