Varsani v Sunrise Pools Australia Pty Ltd t/as Sunrise Pools [2021] NSWCATAP 386

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Varsani v Sunrise Pools Australia Pty Ltd t/as Sunrise Pools [2021] NSWCATAP 386 Hearing dates: 17 December 2020 Date of orders: 30 November 2021 Decision date: 30 November 2021 Jurisdiction: Appeal Panel Before: M A Harrowell, Deputy President G K Burton SC, Senior Member Decision: 1. The order made in application HB 19/27962 on 31 August 2020 and 25 September 2020 is set aside. 2. Save as provided in order 1, leave to appeal is refused and the appeal is dismissed. 3. The appellants are to pay the respondent's costs of this appeal as agreed or assessed on the ordinary basis, such costs to exclude any costs in relation to application HB 19/27962. 4. If either party contends for a different costs order, the following directions apply: (a) Within 14 days from the date of these orders the applicant for costs (costs applicant) is to file and serve any evidence and submissions in support of the application (costs application). (b) Within 28 days from the date of these orders, the respondent to the costs application is to file and serve any evidence and submissions in response. (c) Within 42 days from the date of these orders, the costs applicant is to file and serve any submissions in reply. (d) The parties submissions are to include submissions concerning whether an order should be made dispensing with a hearing of the costs application. Catchwords: Home building – delay by owner in respect of scope of alleged defective work – termination by builder by acceptance of alleged repudiation from delay – validity of defect notice Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Regulation 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Home Building Act 1989 (NSW) Cases Cited: Carr v JA Berriman Pty Ltd [1953] HCA 31; (1953) 89 CLR 327 Francis Gregory Hannigan v Inghams Enterprises Pty Ltd [2019] NSWSC 321 New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 Sharjade Pty Ltd v Commonwealth of Australia [2009] NSWCA 373; (2009) 15 BPR 28,443 Texts Cited: Nil Category: Principal judgment Parties: Kanti and Byra Varsani (appellants) Sunrise Pools Australia Pty Ltd t/as Sunrise Pools (respondent) Representation: Counsel: Mr M Klooster (appellants) Mr T Davie (respondents)