Addbuild Master Builders Pty Ltd v Stern [2021] NSWCATCD 83

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Addbuild Master Builders Pty Ltd v Stern [2021] NSWCATCD 83 Hearing dates: 17 and 18 May 2021 Date of orders: 17 August 2021 Decision date: 13 August 2021 Jurisdiction: Consumer and Commercial Division Before: D Goldstein, Senior Member Decision: 1 In HB 20/15094 Gary Stern must pay Addbuild Master Builders Pty Ltd $52,584.25 immediately. 2 In HB 20/33635 within 21 days of the date of this decision the parties must file (in hard copy and electronic form) an agreed work order with all necessary conditions including the period of time within which the work is to be undertaken, and any final payment to be made to the builder. 3 In the event that the parties are unable to agree the work order, they must each within 21 days of the date of this decision file (in hard copy and electronic form) the form of work order for which they contend with all necessary conditions including the period of time within which the work is to be undertaken, and any final payment to be made to the builder. 4 In the event that a party wishes to bring a costs application, the costs application must be lodged in the Tribunal and served on the costs respondent within 14 days of the date of the orders in these proceedings either attaching or referring to the documents relied upon in support of the application. 5 The costs respondent will have 14 days after the date it or he receives the application to lodge in the Tribunal and serve on the costs applicant his or its submissions, if any, in response to the costs application, such submissions either attaching or referring to the documents relied upon. 6 The cost applicant will have 14 days after the date he or it receives the cost respondent's submissions to lodge in the Tribunal and serve on the costs respondent its or his submissions, if any, in reply, such submissions either attaching or referring to the documents relied upon. 7 The parties must state in their submissions whether or not they consent to the costs application being determined on the basis of the parties written submissions and attached documents, if any, without the need for a hearing. 8 Subject to the parties' submissions, the Tribunal will determine any costs application on the basis of the papers lodged in the Tribunal. Catchwords: BUILDING AND CONSTRUCTION — Proper construction of payment provisions in clauses 12 and 14 of New South Wales Fair Trading residential building contract — Damages — Mitigation — Work order — Section 48MA of the Home Building Act 1989 (NSW) Legislation Cited: Home Building Act 1989 (NSW) Cases Cited: Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; (1973) 129 CLR 99 Bellgrove v Eldridge (1954) 90 C.L.R. 613 Gilbert-Ash (Northern) Ltd v Modern Engineering (Bristol) Ltd [1974] AC 689 Hadley v Baxendale (1854) 9 Exch 341 Mount Bruce Mining Pty Limited v Wright Prospecting Pty Limited [2015] HCA 37 Radford v De Froberville [1977] 1 WLR 1262 at 1270 Sotiros Shipping Inc. And Aeco Maritime S.A. v. Sameiet Solholt; (The 'Solholt') (1983) 1 Lloyds Rep, 605 Tabcorp Holdings Pty Limited v Bowen Investments Pty Limited [2009] HCA 8 The Owners - Strata Plan No 76674 v Di Blasio Constructions Pty Ltd [2014] NSWSC 1067 Texts Cited: Nil Category: Principal judgment Parties: Addbuild Master Builders Pty Ltd (Applicant) Gary Stern (Respondent) Representation: Counsel: P Newton (Applicant) J Foley (Respondent)