09 May 2018
9 min read
#Property, Planning & Development
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Blessed Sydney Constructions Pty Ltd v Vasudevan [2018] NSWCATAP 98
In Blessed Sydney Constructions Pty Ltd v Vasudevan [2018] NSWCATAP 98 on 26 April 2018, the New South Wales Civil and Administrative Tribunal (the Tribunal) Appeal Panel looked at the extent of the Tribunal’s power to make a money order on a renewal application.
Facts
The Owner claimed for defects, the builder claimed amounts for works carried out.
On the day of the hearing, the Owner and the Builder executed a written agreement. The Builder withdrew its application and the Tribunal subsequently made a work order in relation to the Owner’s application that the Builder return to the Property and perform certain works under the contract and its agreed variations in a proper and workmanlike manner. The Owner was to be charged for five variations. The Owner was granted leave to renew its proceedings within 12 months if the work order was not complied with.
The Owner instituted renewal proceedings in the Tribunal, alleging the Builder had failed to complete the works subject of the work order. Further, three out of five variations appeared to have not been completed or invoiced.
The Tribunal varied its orders, requiring the Builder to pay the homeowner damages in the sum of $83,243.05, plus legal costs.
Appeal
On appeal, the Builder argued the Tribunal did not have the power to award the Owner damages as an order for damages could not have been made under clause 8(4)(a) of Schedule 4 to the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), which limits the Tribunal’s powers on renewal to making any other appropriate order under the NCAT Act or enabling legislation as it could have made when the matter was originally determined. The relevant circumstance informing this argument was that the contract had not been terminated.
The Appeal Panel favoured an interpretation of clause 8(4)(a) that “as [the Tribunal] could have made when the matter was originally determined” should be construed as referring to orders that the Tribunal had authority to make when the matter was originally determined, whether those orders were appropriate or not in the circumstances at that time. In the case of an application under the HB Act, such orders include all those in s48O.
The Appeal Panel summarised its views on the proper construction of clause 8(4)(a) as follows:
The Appeal Panel found that the contract had been terminated between the work order and the renewal hearing. Accordingly it was not relevant that the contract had not been terminated when the work order was made.
In so finding, the Appeal Panel accepted that the Tribunal may not award substantial damages, representing the cost of completing incomplete work under a building contract, while the building contract remains on foot, and the builder remains in possession of the site and is carrying out work as required by the contract.
Given the contract was no longer on foot and its four criteria were met, the Appeal Panel held that the Tribunal below’s order for the Builder to pay the Owner damages was correctly made. As such, the appeal was dismissed.
What does this mean?
This decision is significant for parties who appear before the Tribunal on a renewal application. The Appeal Panel has interpreted the renewal powers widely and builders who may benefit from s.48MA in the Tribunal below by the making of a work order, should be mindful of the scope for its conversion to a money order on renewal.
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Dimitropoulos v Capital Constructions Pty Ltd; Capital Constructions Pty Ltd v Dimitropoulos [2018] NSWCATAP 100
CONTRACT LAW – termination on notice – substantial breach – meaning of “substantial”.
REPUDIATION – election – manner by which repudiation can be accepted – reasonable time to make election – conduct in performance of contract while considering notice under contract.
COSTS – exercise of discretion.
Ingate v Andrews [2018] NSWCATAP 99
HOME BUILDING – Builder’s claim against owner for undocumented variations – Quantum Meruit – Relevant Principles – Application of Principles – Appeal Dismissed.
Carrigan v NSW Fair Trading [2018] NSWCATOD 60
ADMINISTRATIVE REVIEW – Home Building – Application for individual contractor licence – Where application rejected on basis that applicant did not meet requirements of an instrument made by the respondent – Whether the Tribunal is satisfied that the applicant has the requisite qualifications and experience to be a builder.
Blessed Sydney Constructions Pty Ltd v Vasudevan [2018] NSWCATAP 98
RENEWAL OF PROCEEDINGS – powers of Tribunal on renewal application – cl 8(4) of Sch 4 to the Civil and Administrative Tribunal Act 2013 (NSW) – construction of “any other appropriate order under this Act or enabling legislation as it could have made when the matter was originally determined” – whether Tribunal has power to make an order for the payment of money in place of a work order – Tribunal has power to make order for the payment of money by way of damages in this case even if such an order was not appropriate when the proceedings were originally determined.
Knox v Bollen; Bollen v Knox [2018] NSWCATAP 106
APPEAL – costs where proceedings settled – adequacy of reasons – Mr Knox (the homeowner) and Mr Bollen (the builder) applied for costs. Their applications arose from the settlement of their respective substantive applications (HB 16/32832 and HB 17/04418), which were brought under the Home Building Act 1989 (NSW).
Grant v Gillham; Christopher J Grant Pty Ltd v Gillham [2018] NSWCATAP 104
APPEAL: Home building – Identity of contracting parties – Breach – Determination of compensation – Adequacy of reasons.
SHMH Properties Australia Pty Ltd v City of Sydney Council [2018] NSWLEC 66
APPEAL – modification of development consent – development consent to change use of building to boarding house and associated alterations to building – deletion of deferred commencement conditions requiring submission of BASIX certificate – whether development is “BASIX affected development” – whether building is “BASIX affected building” – whether certain units in the boarding house are “dwellings” – modification refused.
Central Projects Pty Ltd v Davidson [2018] NSWSC 523
BUILDING AND CONSTRUCTION – Progress payments – Effect of omission of information from a supporting statement under Building and Construction Industry Security of Payment Act 1999 (NSW) s.13(9) – Effect of failure to serve a supporting statement under Building and Construction Industry Security of Payment Act 1999 (NSW) s.13(7).
Rekrut and Scott v Champion Homes Sales Pty Ltd; Champion Homes Sales Pty Ltd v Rekrut and Scott [2018] NSWCATAP 97
COSTS – NCAT Internal appeal – amount in issue in excess of $30,000 – r.38A of the Civil and Administrative Tribunal Rules 2014 (NSW) and cl.20(4) of the Consumer, Trader and Tenancy Tribunal Regulation 2009 (NSW) – no issue of principle COSTS – general rule that costs follow the event – application of the rule and discretion – no issue of principle.
Both appeals were from orders in proceedings in the Consumer and Commercial Division (file number HB 13/66604) arising out of home building work carried out by the builder for the owners.
Contacts:
Christine Jones, Partner - Construction & Infrastructure (Dispute Resolution)
T: +61 2 8083 0477
E: christine.jones@holdingredlich.com
Stefanie Dunnicliff, Senior Associate
T: +61 2 8083 0464
E: Stefanie.Dunnicliff@holdingredlich.com
Divya Chaddha, Associate
T: +61 2 8083 0457
E: Divya.Chaddha@holdingredlich.com
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