Tanios v Baserite Constructions Pty Ltd [2021] NSWCATCD 85

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Tanios v Baserite Constructions Pty Ltd [2021] NSWCATCD 85 Hearing dates: 14 December 2020 and 20 May 2021 Date of orders: 10 August 2021 Decision date: 10 August 2021 Jurisdiction: Consumer and Commercial Division Before: D Charles, Senior Member Decision: 1. In the proceeding constituted by File No HB 20/33320, within 28 days of the date of these orders, the Respondent, Baserite Constructions Pty Ltd is to pay to the Applicant, John Tanios, the sum of $180,144.00. 2. The proceeding constituted by File No HB 20/40203 is dismissed. 3. If any party in either proceeding or in the proceeding constituted by File No AP 19/49553 seeks an order for costs leave is granted to file and serve a short written submission (no more than 5 A4 size pages) on that issue only within 28 days of the date of these orders. 4. Leave is granted to the other party to file and serve a short written submission in reply (no more than 5 A4 size pages) within a further period of 28 days. 5. In any such submissions the parties are to address the matter of whether pursuant to the provisions of the Civil and Administrative Tribunal Act 2013 NSW, s 50(2), the Tribunal should dispense with a hearing on the issue of costs so that the issue is decided on the papers lodged with the Tribunal and with appearances of the parties not required. Catchwords: BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — Whether a building works agreement arose out of a compromise of prior proceedings — Whether a consent work order in the prior proceedings was beyond the Tribunal's jurisdiction — Renewal application by home owner on remitter from Appeal Panel — Oral variation of building works agreement alleged by builder – Whether oral variation is enforceable — Cross application by builder for quantum meruit sum in respect of some building works performed following compromise of prior proceedings Legislation Cited: Home Building Act 1989 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Cases Cited: Baserite Constructions Pty Ltd v Tanios [2020] NSWCATAP 77 (6 May 2020) Bondarek v NSW Land and Housing Corporation [2018] NSWCATAP 299 (14 December 2018) Robert Symes and Kim Louise Filmer v Mick Fabar Constructions Pty Ltd [2015] NSWCATCD 77 (30 June 2015) Mann v Paterson Constructions Pty Ltd (2019) 267 CLR 560 Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; [2002] HCA 8 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 [1982] HCA 24 Royal Diamonds Pty Ltd v Buttle [2016] NSWCATAP 230 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 International Air Transport Association v Ansett Australia Holdings Ltd. (2008) 82 ALJR 419 [2008] HCA 3 Maggbury Pty. Ltd. v Hafele Australia Pty. Ltd. (2001) 210 CLR 181 Robinson v Harman [1848] EngR 135; (1848) 1 Exch 850; [1848] 154 ER 363 Bellgrove v Eldridge [1954] HCA 36; (1954) 90 CLR 613 Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272, [2009] HCA 8 Galdona v Peacock [2017] NSWCATAP 64 Texts Cited: Nil Category: Principal judgment Parties: In proceedings HB 20/33320: John Tanios (Applicant) Baserite Constructions Pty Ltd (Respondent)