Rudas and Andrassy v Eid [2021] NSWCATAP 4

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Rudas and Andrassy v Eid [2021] NSWCATAP 4 Hearing dates: 25 November 2020 Date of orders: 8 January 2021 Decision date: 08 January 2021 Jurisdiction: Appeal Panel Before: Dr R Dubler SC, Senior Member L Wilson, Senior Member Decision: (1) Leave to appeal is granted. (2) Appeal is upheld. (3) The orders of the Tribunal of 28 May 2020 in proceedings HB19/17018 are set aside and in lieu thereof the Appeal Panel of the Tribunal makes the following orders: 1. Order that the Respondent is to pay $187,280.24 to the Applicants immediately. 2. Order that the Respondent is to pay the costs of the Applicants on the ordinary basis as agreed or assessed. (4) Subject to order (6) below, the Respondent is to pay the Appellants' costs of the appeal on the ordinary basis. (5) If any party seeks a different costs order to that in order (4), the following directions apply: 1. The applicant for costs ("costs applicant") must file and serve any costs application, including submissions and any evidence in support, within 14 days of receipt of these orders. 2. The respondent to the costs application ("costs respondent") is to file and serve any submissions and evidence in response within 14 days thereafter. 3. The costs applicant is to file and serve any submissions in reply within 7 days thereafter. 4. Any submissions are to include submissions on the issue of whether an order should be made pursuant to s.50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) dispensing with a hearing of the costs application. (6) In the event an application is made pursuant to order (5), order (4) shall cease to have effect. Catchwords: BUILDING AND CONSTRUCTION – whether the owners terminated the building contract by accepting the repudiation of the builder – whether the Tribunal erred in holding that the building contract remains on-foot – what order should be made for damages Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss.35, 55(1)(b), 80(2), cl 12(1) of Schedule 4, Civil and Administrative Tribunal Rules 2015 (NSW), r 38(2)(b), r 38A Home Building Act 1989 (NSW) Cases Cited: Brewarrina Shire Council v Beckhaus Civil Pty Ltd [2005] NSWCA 248 Clements v Murphy [2018] NSWCATAP 152 Collins v Urban [2014] NSWCATAP 17 Cooper v Kinsella [2011] NSWCA 45 Holland v Wiltshire (1954) 90 CLR 409 Janos v Chama Motors Pty Ltd [2011] NSWCA 238 Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537 Rekrut & Scott v Champion Homes Sales Pty Ltd; Champion Home Sales Pty Ltd v Rekrut & Scott [2018] NSWCATAP 97 Vitol SA v Norelf Ltd [1996] AC 800; 3 All ER 193 Texts Cited: None Category: Principal judgment Parties: Mate Rudas (First Appellant) Boglorka Andrassy (Second Appellant) Pierre Eid (Respondent) Representation: Counsel: R Zikmann (Appellants)