Patel v Caesar Homes Pty Ltd [2021] NSWCATCD 47

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Patel v Caesar Homes Pty Ltd [2021] NSWCATCD 47 Hearing dates: 29 June 2021 Date of orders: 1 July 2021 Decision date: 01 July 2021 Jurisdiction: Consumer and Commercial Division Before: G Blake AM SC, Senior Member Decision: (1) The proceedings are dismissed. Catchwords: CIVIL PROCEDURE — Jurisdiction — Renewal of proceedings in the Consumer and Commercial Division of NCAT – Whether condition in cl 8 of Sch 4 of the Civil and Administrative Tribunal Act 2013 (NSW) has been satisfied Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), Sch 4, cl 8 Civil and Administrative Tribunal Rules 2014 (NSW), r 35 Home Building Act 1989 (NSW), s 48O Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: Mehul Patel and Jigisha Patel (Applicants) Caesar Homes Pty Ltd (Respondent) File Number(s): HB 21/16948 Publication restriction: Nil

REASONS FOR DECISION

Overview 1. In these proceedings the applicants, Mehul Patel (Mr Patel) and Jigisha Patel (Ms Patel), who are the owners, seek against the respondent, Caesar Homes Pty Ltd, who is the builder, an order for the payment of $340,000.00 under s 48O(1)(a) of the Home Building Act 1989 (NSW) (HB Act). 2. I have decided that the proceedings should be dismissed.

The background 1. The applicants and the respondent entered in to contract whereby the respondent agreed to carry out residential builder work. 2. A dispute arose between the applicants and the respondent. 3. On 1 December 2019, the applicants commenced proceedings HB 19/53710 under the HB Act against the respondent. 4. On 8 February 2021, the Tribunal made the following orders and noted the agreement between the parties in proceedings HB 19/53710 (the 8 February 2021 orders): "1. The Applicant withdraws their claim against all Respondents pursuant to 55(1)(a) of the Civil & Administrative Tribunal Act 2013 (NSW) with no order as to costs as between those parties with the intention that each party bears their own costs. 2. Leave is granted for the Applicants to renew the proceedings against Caesar Homes Pty Ltd at any time within the next 12 months upon default of the agreement set out below. 3. Liberty to restore on the giving of 7 days notice. Notation 4. The Tribunal notes the binding agreement entered into between the parties on the following terms: 5. Caesar Homes Pty Ltd (the Respondent) to pay the Applicants the sum of $340,000.00 in the following manner: (a) $30,000.00 on or before 10 March 2021 being 30 days from the date of these Orders; (b) $100,000.00 on or before 9 April 2021 being 60 days from the date of these Orders; (c) $100,000.00 on or before 9 May 2021 being 90 days from the date of these Orders; and (d) $110,000.00 on or before 8 June 2021 being 120 days from the date of these Orders. 6. All payments to be made to the following account, with all monies to have cleared and be in immediately available funds by each date referred to in 5 above: New South Lawyers Law Practice Trust Account BSB 112 879 Account No. 424 089 424 7. In the event that moneys have not cleared by the date referred to above: (a) Applicants or their Solicitors to notify the Respondent by sending an email to the following email addresses providing a further 7 days for payment to be made and funds to clear within those 7 days: (i) harish@caesarhomes.com.au (ii) babuchokkappa@yahoo.com (b) In the event that notice has been provided and funds have not cleared within the 7 days, the Applicants are entitled to a money order in renewed proceedings in the amount of $340,000.00 less payments made by the Respondent. 8. The parties agree that the Respondent is not entitled to raise any Defence, Cross-Claim or set off with respect to a money order being made. Provided the Applicants establish that a notification was sent to the email addresses referred to in 7 above and the default in making payment, the money order will be made on the terms set out above against the Respondent in the renewed proceedings." 1. Subsequent to 8 February 2021, no payments were made by the respondent into the trust account specified in paragraph 5 of the 8 February 2021 orders. 2. On 11 March 2021 at 11.40am, the applicants' lawyer, Toufic Bazouni (Mr Bazouni), sent an email to the email addresses specified in paragraph 7 of the 8 February 2021 orders attaching a letter dated 11 March 2021 addressed to the respondent's lawyers, CB Jai Lawyers, giving notice to the respondent to pay the sum of $30,000.00 into their trust account.