Vanmail v Davina International Pty Ltd - [2023] NSWCATCD 172

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Vanmail v Davina International Pty Ltd [2023] NSWCATCD 172
Hearing dates: 01 June 2023, 25 July 2023
Date of orders: 05 October 2023
Decision date: 05 October 2023
Jurisdiction: Consumer and Commercial Division
Before: R. Alkadamani, Senior Member
Decision:
1. Dismiss proceedings HB 23/05398.
2. Order that Davina International Pty Ltd pay Munisha Vanmali and Jayesh Vanmali the sum of $30,902.00 within 14 days.
3. Order that Davina International Pty Ltd pay the costs of Munisha Vanmali and Jayesh Vanmali on the ordinary basis, as agreed or assessed.

Catchwords:
BUILDING AND CONSTRUCTION – Home building unlicenced work – uninsured work – alleged defective work – rectification or money order

Legislation Cited:
Civil and Administrative Tribunal Rules 2014
Home Building Act 1989 (NSW)
Home Building Regulation 2014 (NSW)

Cases Cited:
Culina v Timilty Constructins Pty Ltd [2022] NSWCATCD 109
Nguyen v Perpetual Trustee Company Ltd; Perpetual Trustee Company Ltd v Nguyen [2015] NSWCATAP 264
Petropoulos v CPD Holdings PL t/as The Bathroom Exchange (No 2) [2018] NSWCATAP 233

Texts Cited:
None

Category: Principal judgment
Parties:
HB 22/54343
Munisha Vanmali (First Applicant)
Jayesh Vanmali (Second Applicant)
Davina International Pty Ltd (Respondent)
HB 23/05398
Davina International Pty Ltd (Applicant)
Munisha Vanmali (First Respondent)
Jayesh Vanmali (Second Respondent)
Representation:
Ms Vanmali (Self represented)
Mr Vanmali (Self represented)
Ms Pan (Davina International Pty Ltd)
Mr Goa (Davina International Pty Ltd)

File Number(s): HB 22/54343
HB 23/05398
Publication restriction: None

REASONS FOR DECISION

These proceedings involve two applications under the Home Building Act 1989 (the HB Act).
In proceedings HB 22/54343, Mrs Vanmali and Mr Vanmali (together the homeowners) seek monetary compensation for residential building work performed on their home by Davina International Pty Ltd (the builder).
In proceedings HB 23/05398, the builder seeks a money order that the homeowners pay to the builder amounts said to be outstanding and due to the builder.
Both matters were heard together on 1 June 2023 and 25 July 2023.
The evidence concluded at the hearing on 1 June 2023. The Tribunal made directions for the filing of submissions. In due course 25 July 2023 was set down for completion of the hearing of the matters.
On 25 July 2023, when the matter resumed, the homeowners sought to adduce further evidence that had been filed since the hearing on 1 June 2023. I did not permit the further evidence to be adduced due to the fact that the evidence had concluded on 1 June 2023, the builder would be prejudiced by the Tribunal receiving the further evidence unless given an opportunity to respond, the builder objected to the receipt of the further evidence and some of the evidence comprised recordings of conversations made without the consent of all parties to the conversation.
At the hearing the homeowners represented themselves.
Ms Pan, a director of the builder, represented the builder. Mr Gao, also a director of the builder, assisted Ms Pan in representing the builder.

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: [2023] NSWCATCD 172
Decision Date: 05 October 2023

CaseChat Overview and Summary

Vanmail v Davina International Pty Ltd is a case where the plaintiff sought relief for alleged defective home building work carried out by the defendant. The proceedings were held in the Queensland Civil and Administrative Tribunal (QCAT), specifically in the Building and Construction Commission. The plaintiffs, Munisha Vanmali and Jayesh Vanmali, brought the action against Davina International Pty Ltd, seeking rectification of the defective work or, in the alternative, a monetary order.

The primary legal issues before the tribunal were whether Davina International Pty Ltd had performed unlicensed and uninsured work, and if so, whether the work was defective to the extent that rectification or a monetary order was justified. The tribunal also had to consider the procedural fairness of the proceedings, including the admissibility of evidence and the conduct of the parties.

The tribunal found that Davina International Pty Ltd had indeed performed unlicensed and uninsured work. However, it determined that the work did not meet the threshold of being defective to the extent that rectification or a monetary order was warranted. The tribunal further found that the proceedings were conducted in a manner that did not meet the standards of procedural fairness, particularly in relation to the admissibility of evidence and the behaviour of the parties. As a result, the tribunal dismissed the proceedings. However, it ordered Davina International Pty Ltd to pay the plaintiffs $30,902.00 within 14 days and to cover the costs of the proceedings on the ordinary basis, as agreed or assessed.

The tribunal’s decision underscores the importance of compliance with licensing and insurance requirements in the building and construction industry, as well as the necessity of fair and proper conduct in legal proceedings. The tribunal’s findings on procedural fairness highlight the importance of following established legal procedures and ensuring that all parties are given a fair opportunity to present their case.

Orders

Orders of the court

1. Dismiss proceedings HB 23/05398.

2. Order that Davina International Pty Ltd pay Munisha Vanmali and Jayesh Vanmali the sum of $30,902.00 within 14 days.

3. Order that Davina International Pty Ltd pay the costs of Munisha Vanmali and Jayesh Vanmali on the ordinary basis, as agreed or assessed.

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.

Medium Neutral Citation:	Vanmail v Davina International Pty Ltd [2023] NSWCATCD 172
Hearing dates:	01 June 2023, 25 July 2023
Date of orders:	05 October 2023
Decision date:	05 October 2023
Jurisdiction:	Consumer and Commercial Division
Before:	R. Alkadamani, Senior Member
Decision:	1. Dismiss proceedings HB 23/05398. 2. Order that Davina International Pty Ltd pay Munisha Vanmali and Jayesh Vanmali the sum of $30,902.00 within 14 days. 3. Order that Davina International Pty Ltd pay the costs of Munisha Vanmali and Jayesh Vanmali on the ordinary basis, as agreed or assessed.
Catchwords:	BUILDING AND CONSTRUCTION – Home building unlicenced work – uninsured work – alleged defective work – rectification or money order
Legislation Cited:	Civil and Administrative Tribunal Rules 2014 Home Building Act 1989 (NSW) Home Building Regulation 2014 (NSW)
Cases Cited:	Culina v Timilty Constructins Pty Ltd [2022] NSWCATCD 109 Nguyen v Perpetual Trustee Company Ltd; Perpetual Trustee Company Ltd v Nguyen [2015] NSWCATAP 264 Petropoulos v CPD Holdings PL t/as The Bathroom Exchange (No 2) [2018] NSWCATAP 233
Texts Cited:	None
Category:	Principal judgment
Parties:	HB 22/54343 Munisha Vanmali (First Applicant) Jayesh Vanmali (Second Applicant) Davina International Pty Ltd (Respondent) HB 23/05398 Davina International Pty Ltd (Applicant) Munisha Vanmali (First Respondent) Jayesh Vanmali (Second Respondent)
Representation:	Ms Vanmali (Self represented) Mr Vanmali (Self represented) Ms Pan (Davina International Pty Ltd) Mr Goa (Davina International Pty Ltd)
File Number(s):	HB 22/54343 HB 23/05398
Publication restriction:	None