Assaf v Sky Group Pty Ltd [2019] NSWCATCD 67

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Assaf v Sky Group Pty Ltd [2019] NSWCATCD 67 Hearing dates: 10/9/18;11/9/18;27/11/18;29/3/19 Date of orders: 30 July 2019 Decision date: 30 July 2019 Jurisdiction: Consumer and Commercial Division Before: C Paull, Senior Member Decision: 1. In matter HB17/18441 I find that the respondent, Sky Group Pty Ltd is liable to pay the applicant, George Assaf $128,348.79 for defective work and $7000 for an overpayment of work not done by the respondent. 2. In matter HB17/35616 I find that the respondent, George Assaf is liable to pay the applicant, Sky Group Pty Ltd $1540 for variations 3. In offsetting Order 1 against Order 2 I order Sky Group Pty Ltd to pay $133,808.79 on or before 29 August 2019. 4. The parties have until 29/8/19 to make any costs application or any application as to whether the name of Sky Group Pty Ltd needs to be amended Legislation Cited: Home Building Act 1989 Category: Principal judgment Parties: George Assaf (Applicant in HB 17/18441; Respondent in HB 17/35616) Sky Group Pty Ltd (Respondent in HB 17/18441; Applicant in HB 17/35616) Representation: Counsel: Michael Klooster (for George Assaf) Maurice Baroni (for Sky Group Pty Ltd)

Solicitors: Kerin Benson Lawyers (for George Assaf)

Construction Legal (for Sky Group Pty Ltd) File Number(s): HB17/18441; HB17/35616 Publication restriction: Nil

REASONS FOR DECISION 1. On or about 19 April 2017, the builder and homeowner entered into a written contract ( the contract) for the builder to carry out "residential building work" as that term is defined under the Home Building Act 1989 (the HBA). 2. Prior to this, on or about 13 April 2016, the builder had issued a tender in relation to the subject building work, which the parties agree forms part of the contract (the tender). 3. The builder commenced work sometime in July 2016, the work continued and Progress claims 1-7; Claim 9; and the first half of Claim 8 (PC8 Invoice 1) were issued and paid . 4. There is some dispute as to when the builder issued and the homeowner received the invoice for the remaining 50% balance of money owing for progress claim 8. 5. There are two claim 8 Invoices in evidence. One is dated 10/4/17 (PC8 Invoice 2) . The other is dated 26/4/17. PC 8 Invoice 3). 6. On 28/4/17 the builder issued a suspension notice (the Suspension Notice) and then on 20/6/17, a termination notice (the Termination Notice).The homeowner disputes receiving these notices at the time the builder states they were issued. 7. On 1/7/17, the homeowner took possession of the site. On 8/7/17 the builder removed the fencing from the site. 8. It is convenient to note here that the hearing of the evidence concluded on 29/3/19. On that day the builder represented himself and appeared to suggest that his legal advisors no longer acted for him. This is supported in some correspondence that is on the Tribunal file and I note that the builder has failed to file and serve submissions as directed. 9. In these circumstances I have no alternative other than to deliver my decision based on the evidence and documents before the Tribunal, which includes the Builder's Preliminary Submissions filed 18/6/18 and the homeowner's submissions. 10. I note that the documentary evidence was presented by the parties to the Tribunal in 3 white binders numbered Volumes 1, 2 and (the Tribunal books).