Balogh v Cardno (NSW/ACT) Pty Ltd [2021] NSWCATCD 102

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Balogh v Cardno (NSW/ACT) Pty Ltd [2021] NSWCATCD 102 Hearing dates: 20 August 2021 Date of orders: 15 October 2021 Decision date: 15 October 2021 Jurisdiction: Consumer and Commercial Division Before: G Bassett, General Member Decision: The application is dismissed Catchwords: BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — Residential building work ­— contractual breach — Delay Legislation Cited: Home Building Act 1989 (NSW) Strata Schemes Management Act 2015 (NSW) Cases Cited: Parsons v Adams [2019] NSWCATAP 301 Category: Principal judgment Parties: Carmel Balogh (Applicant) Cardno (NSW/ACT) Pty Ltd (First Respondent) Body Corporate Services Pty Ltd (Second Respondent) Genuine Building Solutions Pty Ltd (Third Respondent) Representation: Applicants (Self represented) S Denny (Second Respondent) G Jardine (Third Respondent)

Counsel: M Gan (First Respondent) File Number(s): HB 21/26281 Publication restriction: Ni

REASONS FOR DECISION 1. On 17 June 2021 the Ms Balogh applied for an order in the Home Building Division of the Tribunal that she be paid $24,000.00. In her "Dispute Details" on the originating application she alleged she was "a direct party to the contract for internal repairs to the property". She alleged delay in completing works, stating works ought to have been completed on 20 July 2020 when in fact they not finished until 8 June 2021. She alleged the contract overran time for 45 weeks and there was a contractual clause that delay damages ran at $500.00 per week. She alleged lack of project management and supervision by both the first respondent (Cardno) and the third respondent, (GBS). She also alleged that Body Corporate Services Pty Ltd (BCS), the strata management company of the applicants' own strata, was a cause of delay "due to communication and payment issues". 2. At the conciliation hearing it became apparent the applicant had misnamed the respondents and not provided ASIC company extracts for the respondents despite the request of the Tribunal. The issue was raised as to Ms Balogh being a direct party, or indeed a party at all, to the home building contract alleged. Parties were put on notice that the hearing subject of this determination would consider whether the applicant had a contractual nexus or cause of action under a home building claim against any of the respondents. 3. The contract relied on by Ms Balogh was not a home building contract in any of the standard forms such as that of the Office of Fair Trading or an industry association such as the Housing Industry Association. Furthermore, it was common ground between the parties that the works involved were to common walls of the strata. Access was sought through Ms Balogh's individual lot to these common walls. Access to such walls required removal and restoration of Ms Balogh's kitchen and bathroom. 4. The applicant applied for an Arabic interpreter in her originating application. That interpreter was available at the beginning of the hearing but the representative for Ms Balogh said no interpreter was needed. 5. The version of the contract provided by the applicant for hearing was missing key pages. Cardno and GBS provided a full copy, in particular the crucial and missing title page which named the parties to the agreement. 6. The main terms and conditions were: 1. the contract was between GBS and The Owners of Strata Plan No. 3755 ("The Owners SP 3755") 2. Cardno was nominated as a contact point for communications about the contract and was a supervisor of the contract, but not a party 3. the contract was for a sum of $146,300.00 to do restoration works as set out in a contract schedule at Appendix A of the agreement 4. the contract was signed on behalf of the Owners SP 3755 by a representative of their strata management company, being BCS. 1. The delay clause relied on by the applicant was at Claus A8 of the contract. It stated delay damages for non-completion by the contract date were limited to $500.00 per week.