Shanahan v Erwin Fornasier t/as Enhance Building [2021] NSWCATAP 158

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Shanahan v Erwin Fornasier t/as Enhance Building [2021] NSWCATAP 158 Hearing dates: 15 March 2021 Date of orders: 31 May 2021 Decision date: 31 May 2021 Jurisdiction: Appeal Panel Before: The Hon F Marks, Principal Member D Robertson, Senior Member Decision: (1) The appeal is allowed in part. (2) The Tribunal's orders dated 27 October 2020 are set aside. (3) The proceedings are remitted to the Consumer and Commercial Division of the Tribunal for determination consistent with these reasons, including determination of the cost of rectification of the work associated with the construction of the concrete slab. (4) The orders of the Tribunal dated 19 February 2021 relating to the costs of the proceedings are set aside. (5) The issue of the appropriate orders relating to the costs of the proceedings at first instance, including both the initial hearing and the remittal hearing, is remitted for determination by the Tribunal hearing the remitted proceedings. (6) Any application in respect of the costs of the appeal is to be made by written submissions filed and served within 14 days of the date of publication of this decision. (7) If either party files submissions in accordance with order (6) above the other party may file and serve submissions in response within a further 14 days. (8) Submissions strictly in reply to any submissions filed in accordance with order (7) above may be filed and served within a further 7 days. Catchwords: BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — Statutory warranty – Compliance with the law – Construction work carried out that did not comply with development consent or construction certificate – Whether in breach of statutory warranty – Whether builder entitled to payment for work – Whether builder repudiated contract – Whether builder entitled to terminate contract by reason of the owner's non-payment of a progress payment and the exclusion of the builder from the site. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) s 80(2), Sch 4 Cl12(1) Home Building Act 1989 (NSW) ss18B,18F,18G Cases Cited: Collins v Urban [2014] NSWCATAP 17 DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 The Owners - Strata Plan No 66375 v King [2018] NSWCA 170 Texts Cited: None cited Category: Principal judgment Parties: Rebecca Shanahan (Appellant) Erwin Fornasier t/as Enhance Building (Respondent) Representation: Counsel: B DeBuse (Appellant) H Mann (Respondent)