Tanios v Baserite Constructions Pty Ltd

Case [2021] NSWCATCD 85

Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: Tanios v Baserite Constructions Pty Ltd [2021] NSWCATCD 85
Hearing dates: 14 December 2020 and 20 May 2021
Date of orders: 10 August 2021
Decision date: 10 August 2021
Jurisdiction:Consumer and Commercial Division
Before: D Charles, Senior Member
Decision:

1.    In the proceeding constituted by File No HB 20/33320, within 28 days of the date of these orders, the Respondent, Baserite Constructions Pty Ltd is to pay to the Applicant, John Tanios, the sum of $180,144.00.

2.    The proceeding constituted by File No HB 20/40203 is dismissed.

3.    If any party in either proceeding or in the proceeding constituted by File No AP 19/49553 seeks an order for costs leave is granted to file and serve a short written submission (no more than 5 A4 size pages) on that issue only within 28 days of the date of these orders.

4.    Leave is granted to the other party to file and serve a short written submission in reply (no more than 5 A4 size pages) within a further period of 28 days.

5. 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 costs 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 — Home Building Act 1989 (NSW) — Whether a building works agreement arose out of a compromise of prior proceedings — Whether a consent work order in the prior proceedings was beyond the Tribunal’s jurisdiction — Renewal application by home owner on remitter from Appeal Panel — Oral variation of building works agreement alleged by builder – Whether oral variation is enforceable — Cross application by builder for quantum meruit sum in respect of some building works performed following compromise of prior proceedings

Legislation Cited:

Home Building Act 1989 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Civil and Administrative Tribunal Rules 2014 (NSW)

Cases Cited:

Baserite Constructions Pty Ltd v Tanios [2020] NSWCATAP 77 (6 May 2020)

Bondarek v NSW Land and Housing Corporation [2018] NSWCATAP 299 (14 December 2018)

Robert Symes and Kim Louise Filmer v Mick Fabar Constructions Pty Ltd [2015] NSWCATCD 77 (30 June 2015)

Mann v Paterson Constructions Pty Ltd (2019) 267 CLR 560

Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; [2002] HCA 8

Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 [1982] HCA 24

Royal Diamonds Pty Ltd v Buttle [2016] NSWCATAP 230

Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165

International Air Transport Association v Ansett Australia Holdings Ltd. (2008) 82 ALJR 419 [2008] HCA 3

Maggbury Pty. Ltd. v Hafele Australia Pty. Ltd. (2001) 210 CLR 181

Robinson v Harman [1848]…

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Details
AGLC
Tanios v Baserite Constructions Pty Ltd [2021] NSWCATCD 85
Case
[2021] NSWCATCD 85
Decision Date

CaseChat Overview and Summary

The matter before the court involved a dispute between John Tanios, the home owner, and Baserite Constructions Pty Ltd, the builder. The dispute centred on the enforceability of a building works agreement that arose from a compromise of prior proceedings, and whether an oral variation of the agreement was enforceable. Additionally, the builder sought a quantum meruit sum for some building works performed following the compromise of prior proceedings. The case was heard by the Civil and Administrative Tribunal of New South Wales.

The legal issues that the court was required to decide included whether a building works agreement arose out of a compromise of prior proceedings, whether a consent work order in the prior proceedings was beyond the Tribunal’s jurisdiction, whether the oral variation of the building works agreement was enforceable, and whether the builder was entitled to a quantum meruit sum for some building works performed following the compromise of prior proceedings. The court was also required to consider whether the provisions of the Civil and Administrative Tribunal Act 2013 NSW, s 50(2), should be applied to dispense with a hearing on the issue of costs.

The court found that a building works agreement arose out of a compromise of prior proceedings and that the consent work order in the prior proceedings was not beyond the Tribunal’s jurisdiction. The court held that the oral variation of the building works agreement was not enforceable as it did not meet the requirements of the Home Building Act 1989 (NSW). The court also found that the builder was not entitled to a quantum meruit sum for some building works performed following the compromise of prior proceedings. The court further held that the provisions of the Civil and Administrative Tribunal Act 2013 NSW, s 50(2), should be applied to dispense with a hearing on the issue of costs.

The court ordered that Baserite Constructions Pty Ltd pay John Tanios the sum of $180,144.00 within 28 days of the date of the orders. The proceeding constituted by File No HB 20/40203 was dismissed. The court also granted leave for the parties to file and serve short written submissions on the issue of costs, and to consider whether a hearing on the issue of costs should be dispensed with.

Orders

Orders of the court

1. In the proceeding constituted by File No HB 20/33320, within 28 days of the date of these orders, the Respondent, Baserite Constructions Pty Ltd is to pay to the Applicant, John Tanios, the sum of $180,144.00.

2. The proceeding constituted by File No HB 20/40203 is dismissed.

3. If any party in either proceeding or in the proceeding constituted by File No AP 19/49553 seeks an order for costs leave is granted to file and serve a short written submission (no more than 5 A4 size pages) on that issue only within 28 days of the date of these orders.

4. Leave is granted to the other party to file and serve a short written submission in reply (no more than 5 A4 size pages) within a further period of 28 days.

5. 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 costs 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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