Syed v Delcon Group Pty Ltd

Case [2024] NSWCATCD 33


Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: Syed v Delcon Group Pty Ltd [2024] NSWCATCD 33
Hearing dates: 11 and 12 July 2023, 21 November 2023, Written Submissions dated 12 September 2023, 6 December 2023, and 31 January 2024
Date of orders: 05 March 2024
Decision date: 05 March 2024
Jurisdiction:Consumer and Commercial Division
Before: D G Charles, Senior Member
Decision:

1 The Respondent, Delcon Group Pty Ltd is to pay the Applicant, Nausheen Syed, the amount of $495,534.17, within 28 days of the date of these orders.

2 Subject to order 3, the Respondent is to pay the Applicant’s costs of the Proceeding on the ordinary basis, as agreed, or as assessed in accordance with the applicable costs’ assessment legislation.

3 Should the parties seek a different costs’ order; the following directions and orders apply:

(a) The Applicant for costs (costs’ Applicant) must file and serve any application with the costs’ Applicant’s written submissions on that issue only (no more than 5 pages) within 14 days of the date of these orders.

(b) Upon filing an application in accordance with order 3(a), order 2 will cease to have effect.

(c) A costs’ Respondent must file and serve any written submissions in response to the issue of costs only (no more than 5 pages) within a further 14 days of receipt of the costs’ Applicant’s submissions.

(d) A costs’ Applicant may file and serve a written submission (no more than 3 pages) strictly in reply to the costs’ Respondent’s submissions within a further 7 days of receipt of the costs’ Respondent’s submissions.

(e) In any such submissions the parties are to address the matter of whether pursuant to the provisions of the Civil and Administrative Tribunal Act 2013 NSW, s 50(2), the Tribunal should dispense with a hearing on the issue of the costs of the Proceeding, so that the issue is decided on the papers lodged with the Tribunal and with appearances of the parties not required.

Catchwords:

BUILDING AND CONSTRUCTION – application refused for reopening case after hearing - competing expert evidence as to quantum to rectify defective residential building work – jurisdiction under Home Building Act 1989 (NSW) – whether “major defects” - s 48MA preferred outcome – work order refused - money order made based on an assessment of the reasonable costs for rectification of defective work.

Legislation Cited:

Home Building Act 1989 NSW

Civil Procedure Act 2005 NSW

Civil and Administrative Tribunal Act 2013 NSW

Civil and Administrative Tribunal Rules 2014 NSW

Cases Cited:

Urban Transport Authority of NSW v Nweiser (1982) 28 NSWLR 471

Rodriguez & Sons Pty Ltd v Queensland Bulk Water Supply Authority trading as Seqwater (No 18) (2018) NSWSC 1828

Baserite Constructions Pty Ltd v Tanios [2020] NSWCATAP 77

Vella v Mir [2019] NSWCATAP 28

Stevenson v Ashton (2019) NSWSC 1689

Galdona v Peacock [2017] NSWCATAP 64

Brennan Constructions Pty Ltd v Davison [2018] NSWCATAP 210

The Owners – Strata Plan 62930 v Kell & Rigby Holdings…

Continue reading Syed v Delcon Group Pty Ltd

Sign in free to access the full text

Details
AGLC
Syed v Delcon Group Pty Ltd [2024] NSWCATCD 33
Case
[2024] NSWCATCD 33
Decision Date

CaseChat Overview and Summary

In the case of Syed v Delcon Group Pty Ltd, the applicant, Nausheen Syed, sought a reopening of a decision made under the Home Building Act 1989 (NSW). The matter concerned the rectification of major defects in residential building work. The Tribunal was required to determine the quantum of damages for the necessary rectification and whether the defects amounted to "major defects" within the meaning of the Act. This was a contentious issue as both parties presented expert evidence on the cost of rectification, which varied significantly.

The legal issues before the Tribunal included whether the defects identified were indeed major defects and whether the costs claimed by the applicant were reasonable and necessary. The Tribunal also had to consider whether it should reopen the case under section 50 of the Civil and Administrative Tribunal Act 2013 (NSW). In its decision, the Tribunal noted that while the applicant had presented expert evidence supporting her claim, the respondent's evidence was equally credible and should not be disregarded. The Tribunal found that the defects did not amount to major defects as defined under the Home Building Act 1989 (NSW), but nevertheless made a money order for the reasonable costs of rectification, which was determined to be $495,534.17.

The Tribunal dismissed the application to reopen the case, concluding that the evidence presented was not so compelling as to warrant a reopening. The Tribunal ordered the respondent to pay the applicant the sum of $495,534.17 within 28 days of the order. The matter of costs was left to be determined according to specific directions issued by the Tribunal, allowing for submissions to be made on the issue of costs without the necessity of a hearing, subject to the parties' agreement.

Orders

Orders of the court

1 The Respondent, Delcon Group Pty Ltd is to pay the Applicant, Nausheen Syed, the amount of $495,534.17, within 28 days of the date of these orders.

2 Subject to order 3, the Respondent is to pay the Applicant’s costs of the Proceeding on the ordinary basis, as agreed, or as assessed in accordance with the applicable costs’ assessment legislation.

3 Should the parties seek a different costs’ order; the following directions and orders apply:

(a) The Applicant for costs (costs’ Applicant) must file and serve any application with the costs’ Applicant’s written submissions on that issue only (no more than 5 pages) within 14 days of the date of these orders.

(b) Upon filing an application in accordance with order 3(a), order 2 will cease to have effect.

(c) A costs’ Respondent must file and serve any written submissions in response to the issue of costs only (no more than 5 pages) within a further 14 days of receipt of the costs’ Applicant’s submissions.

(d) A costs’ Applicant may file and serve a written submission (no more than 3 pages) strictly in reply to the costs’ Respondent’s submissions within a further 7 days of receipt of the costs’ Respondent’s submissions.

(e) In any such submissions the parties are to address the matter of whether pursuant to the provisions of the Civil and Administrative Tribunal Act 2013 NSW, s 50(2), the Tribunal should dispense with a hearing on the issue of the costs of the Proceeding, so that the issue is decided on the papers lodged with the Tribunal and with appearances of the parties not required.

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.