Wood v J and G Constructions Pty Ltd - [2021] NSWCATCD 157

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Wood v J & G Constructions Pty Ltd [2021] NSWCATCD 157
Hearing dates: 27 October 2020
Date of orders: 18 January 2021
Decision date: 18 January 2021
Jurisdiction: Consumer and Commercial Division
Before: P French, General Member
Decision:
(1) J & G Constructions Pty Ltd and Suecha Pty Ltd as trustee for Suecha Family Trust are to pay Christina Jane Wood the sum of $14,238.50 immediately.
(2) No order as to costs

Catchwords:
BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — Statutory warranties — Due care and skill — Compliance with law — Fitness for occupation as a dwelling – Whether defence that work was carried out in accordance with homeowner’s instruction contrary to advice is available — Whether homeowner failed to provide access for the rectification of defects — Whether preferred outcome contained in section 48MA is to be applied in this case
PROCEDURE — Whether application was accepted by Principal Registrar contrary to section 48J and NCAT Procedural Direction 5: Acceptance of Home Building Claims — Whether Tribunal has jurisdiction to deal with an application accepted contrary to section 48J — Whether Tribunal has power to set aside the Registrar’s decision to accept the application
COSTS — Party/party — Civil and Administrative Tribunal Act 2013 — Whether special circumstances justifying an order for costs — Whether delay in finalising an application caused by the setting — Aside of an original decision on the respondents’ application has caused disadvantage to the applicant

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW)
Home Building Act 1989 (NSW)
Home Building Regulation 2014 (NSW)

Cases Cited:
Brennan Constructions Pty Ltd v Davison [2018] NSWCATAP 210
Briginshaw v Briginshaw (1938) 60 CLR 336
Clements v Murphy [2018] NSWCATAP 152
Hadley v Baxendale [1854] 9 Ex 341
Marcourt v Clark [2012] NSWCA 367
Maygood Australia Pty Ltd v The Owners – Strata Plan 85338 [2020] NSWCATAP 237
Miller v Minister for Pensions [1947] 2 All ER 372
Profitability Consulting Pty Ltd v Thorpe [2018] NSWCATAP 4
Roberts v Chan & Naylor Parramatta Pty Ltd aft Chan & Naylor Parramatta Trust [2018] NSWCATAP 240
S & G Homes Pty Ltd t/as Pavilion Homes NSWCATAP 190

Texts Cited:
Australian Standard 4386 Cabinetry in the Built Environment – Commercial and Domestic 2018
NCAT Procedural Direction 5 Acceptance of Home Building Claims

Category: Principal judgment
Parties: Christina Jane Wood (Applicant)
Suecha Pty Ltd as trustee for Suecha Family Trust J & G Constructions Pty Ltd (Respondent)
Representation: Applicant (Self Represented)
Respondent (Self-represented)

File Number(s): HB 20/15761
Publication restriction: Nil

REASONS FOR DECISION

Introduction

This is an application by Christina Jane Wood (the homeowner) for an order pursuant to section 48O(1)(a) of the Home Building Act 1989 (HB Act) that would require J & G Constructions Pty Ltd (the builder) and Suecha Pty Ltd as trustee for Suecha Family Trust (the developer) to pay her $14,238.50 in compensation for costs she contends she has incurred in rectifying…

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: [2021] NSWCATCD 157
Decision Date: 18 January 2021

CaseChat Overview and Summary

The matter of Wood v J and G Constructions Pty Ltd involved a dispute regarding the quality of construction work performed by the respondents, J and G Constructions Pty Ltd, for the applicant, Christina Jane Wood. The case was heard by the Civil and Administrative Tribunal (NCAT) under the provisions of the Home Building Act 1989 (NSW). The primary issues that the tribunal had to determine were whether the respondents could rely on a defence that the work was carried out in accordance with the homeowner's instructions, despite it being contrary to the advice, and whether the applicant had failed to provide access for the rectification of defects. Additionally, the tribunal considered whether the preferred outcome outlined in section 48MA should be applied in this case.

The tribunal found that the respondents were liable for the cost of rectifying the defects identified in the construction work. The tribunal rejected the respondents' argument that they were not liable because the work was carried out in accordance with the homeowner's instructions, despite it being contrary to the advice. The tribunal found that the respondents had not demonstrated that they had exercised the requisite level of due care and skill, and that the work was not fit for occupation as a dwelling. Furthermore, the tribunal found that the applicant had provided adequate access for the rectification of defects, and that the preferred outcome in section 48MA should be applied in this case.

The tribunal also considered the issue of costs. The tribunal found that there were no special circumstances justifying an order for costs. While the applicant had experienced a delay in finalising the application due to the setting aside of an original decision on the respondents' application, the tribunal found that this did not cause a sufficient disadvantage to the applicant to warrant an order for costs.

The tribunal made an order that J and G Constructions Pty Ltd and Suecha Pty Ltd as trustee for Suecha Family Trust are to pay Christina Jane Wood the sum of $14,238.50 immediately. The tribunal made no order as to costs.

Orders

Orders of the court

(1) J & G Constructions Pty Ltd and Suecha Pty Ltd as trustee for Suecha Family Trust are to pay Christina Jane Wood the sum of $14,238.50 immediately.

(2) No order as to costs

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:	Wood v J & G Constructions Pty Ltd [2021] NSWCATCD 157
Hearing dates:	27 October 2020
Date of orders:	18 January 2021
Decision date:	18 January 2021
Jurisdiction:	Consumer and Commercial Division
Before:	P French, General Member
Decision:	(1) J & G Constructions Pty Ltd and Suecha Pty Ltd as trustee for Suecha Family Trust are to pay Christina Jane Wood the sum of $14,238.50 immediately. (2) No order as to costs
Catchwords:	BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — Statutory warranties — Due care and skill — Compliance with law — Fitness for occupation as a dwelling – Whether defence that work was carried out in accordance with homeowner’s instruction contrary to advice is available — Whether homeowner failed to provide access for the rectification of defects — Whether preferred outcome contained in section 48MA is to be applied in this case PROCEDURE — Whether application was accepted by Principal Registrar contrary to section 48J and NCAT Procedural Direction 5: Acceptance of Home Building Claims — Whether Tribunal has jurisdiction to deal with an application accepted contrary to section 48J — Whether Tribunal has power to set aside the Registrar’s decision to accept the application COSTS — Party/party — Civil and Administrative Tribunal Act 2013 — Whether special circumstances justifying an order for costs — Whether delay in finalising an application caused by the setting — Aside of an original decision on the respondents’ application has caused disadvantage to the applicant
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) Home Building Act 1989 (NSW) Home Building Regulation 2014 (NSW)
Cases Cited:	Brennan Constructions Pty Ltd v Davison [2018] NSWCATAP 210 Briginshaw v Briginshaw (1938) 60 CLR 336 Clements v Murphy [2018] NSWCATAP 152 Hadley v Baxendale [1854] 9 Ex 341 Marcourt v Clark [2012] NSWCA 367 Maygood Australia Pty Ltd v The Owners – Strata Plan 85338 [2020] NSWCATAP 237 Miller v Minister for Pensions [1947] 2 All ER 372 Profitability Consulting Pty Ltd v Thorpe [2018] NSWCATAP 4 Roberts v Chan & Naylor Parramatta Pty Ltd aft Chan & Naylor Parramatta Trust [2018] NSWCATAP 240 S & G Homes Pty Ltd t/as Pavilion Homes NSWCATAP 190
Texts Cited:	Australian Standard 4386 Cabinetry in the Built Environment – Commercial and Domestic 2018 NCAT Procedural Direction 5 Acceptance of Home Building Claims
Category:	Principal judgment
Parties:	Christina Jane Wood (Applicant) Suecha Pty Ltd as trustee for Suecha Family Trust J & G Constructions Pty Ltd (Respondent)
Representation:	Applicant (Self Represented) Respondent (Self-represented)
File Number(s):	HB 20/15761
Publication restriction:	Nil