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
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…
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- AGLC
- Syed v Delcon Group Pty Ltd [2024] NSWCATCD 33
- Case
- [2024] NSWCATCD 33
- Decision Date
CaseChat Overview and Summary
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
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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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