Nyunt v North Shore Homes Pty Ltd [2020] NSWCATAP 143

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Nyunt v North Shore Homes Pty Ltd [2020] NSWCATAP 143 Hearing dates: 24 February 2020 Date of orders: 17 July 2020 Decision date: 17 July 2020 Jurisdiction: Appeal Panel Before: K Rosser, Principal Member M Gracie, Senior Member Decision: (1) Leave to appeal on grounds 1-4 of the Amended Notice of Appeal is granted. (2) The appeal is allowed. (3) Orders made by the Tribunal on 12 November 2019 and 9 December 2019 are set aside. (4) In substitution for orders made by the Tribunal on 12 November 2019 and 9 December 2019, the following orders are made: (a) North Shore Homes Pty Ltd is to pay Ann Nyunt the sum of $46,728.13 within 28 days of the date of these orders. (b) North Shore Homes Pty Ltd is to pay two-thirds of Ann Nyunt's costs of the Tribunal proceedings, on the ordinary basis, as agreed or assessed. (5) North Shore Homes Pty Ltd is to pay Ann Nyunt's costs of the appeal including any costs of the stay application, on the ordinary basis, as agreed or assessed. (6) If either party contends for a different costs order, order 5 above ceases to have effect and the following orders apply: (a) The party contending for a different costs order (the costs applicant) is to file and serve evidence and submissions on costs within 14 days of the date of these orders including submissions as to whether a hearing on the question of costs should be dispensed with pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013. (b) The costs respondent is to file and serve any evidence and submissions within 14 days thereafter including submissions as to whether a hearing on the question of costs should be dispensed with pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013. (c) The costs applicant is to file and serve any evidence and submissions in reply within 7 days thereafter. Catchwords: APPEAL - Home Building Act - residential building contract - delay - suspension or abandonment of works - home warranty insurance - structural and non-structural works cover - quantum meruit - just and equitable - repudiation - termination - statutory warranty and intermediate contract terms - defective works - expert evidence - costs to complete - loss of rent COSTS - provisional costs order Legislation Cited: Australian Consumer Law (Cth) Building and Construction Industry Security of Payments Act 1999 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Home Building Act 1989 (NSW) Sales of Goods Act 1923 (NSW) Cases Cited: Bell v Federal Commissioner of Taxation [2012] FCA 1042 Ciantar v Lawrence [2020] NSWCA 89) Collins v Urban [2014] NSWCATAP 17 Eddy Lau Constructions Pty Ltd v Transdevelopment Enterprise Pty Ltd [2004] NSWSC 273 Festa Holdings Pty Ltd v Adderton & Ors [2004] NSWCA 228 Hometeam Constructions Pty Ltd v McCauley [2005] NSWCA 303 Hong Kong Fir Shipping Company v Kawasaki Kisen Kaisha Limited [1961] EWCA Civ 7 Ingham Enterprises Proprietary Limited v Hannigan [2020] NSWCA 82 KG Bominflot Bunkergesellschaft für Mineraloele mbH & Co v Petroplus Marketing AG ("The Mercini Lady") [2010] EWCA Civ 1145 Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61; (2007) 233 CLR 115 at [55] Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32 Lawrence v Ciantar [2019] NSWSC 464 Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA 744 Re Bleriot Manufacturing Aircraft Co (1916) 32 TLR 253 Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359 TFM Epping Land Pty Ltd v Decon Australia Pty Ltd [2020] NSWCA 93 Wesiak v D&R Constructions (Aust) Pty Ltd [2016] NSWCA 353. Texts Cited: None cited Category: Principal judgment Parties: Anne Nyunt: (Appellant) North Shore Homes Pty Ltd (Respondent) Representation: Counsel B DeBuse (Appellant) A Kaufmann (Respondent)