Lucien v Mullally; Mullally v Lucien [2021] NSWCATCD 145

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Lucien v Mullally; Mullally v Lucien [2021] NSWCATCD 145 Hearing dates: 29 April 2021, 21 May 2021 and 15 September 2021 Date of orders: 25 November 2021 Decision date: 25 November 2021 Jurisdiction: Consumer and Commercial Division Before: G Blake AM SC, Senior Member

The decision made on 25 November 2021 is amended pursuant to s 63 of the Civil and Administrative Tribunal Act 2013 (NSW): (amendments are shown in bold type) Decision: (1) The builder Anthony Allan Lucien is pay the owner Nerida Mullally the sum of $31,660.65 immediately. (2) If the parties are in agreement as to the costs of the two proceedings, then they shall provide proposed consent orders to the Tribunal within 14 days of the date of the orders in these reasons for decision. (3) If the parties are not in agreement as to the costs of the two proceedings, then: (a) if any party seeks a costs order, the applicant for costs (the costs applicant) must file and serve a costs application, submissions which shall address the question of whether an order should be made dispensing with a hearing and be limited to five pages, and any evidence in support, within 14 days of the date of the orders in these reasons for decision; (b) the respondent to the costs application is to file and serve any submissions which shall address the question of whether an order should be made dispensing with a hearing and be limited to five pages, and any evidence in opposition, within 14 days thereafter; (c) the costs applicant is to file any submissions in reply limited to three pages within 14 days after receipt of the submissions and any evidence of the respondent to the costs application. If you do not receive the money payable to you as directed by this order, you can get a certified copy of this money order from NCAT. You can then register it with the Local Court to enforce the order. For more information about enforcing money orders, visit the NCAT website www.ncat.nsw.gov.au. Catchwords: BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — Building dispute – Whether the builder breached the building contract by failing to proceed diligently with the works - Whether the builder breached the building contract by failing to rectify defective work – Whether the owner validly terminated the building contract under its terms - Whether the owner validly terminated the building contract under the general law - Whether the owner is entitled to damages for defective work, incomplete work and for delay - Whether the owner is entitled to restitution for monies paid on behalf of the builder - Whether the builder is entitled to a work order in respect of defective work – What is the amount of the money order to which the owner is entitled for damages and restitution - Whether the builder is entitled to a quantum meruit for work done at the request or for the benefit of the owner - What is the amount of the money order to which the builder is entitled for quantum meruit Legislation Cited: Home Building Act 1989 (NSW) Home Building Regulation 2014 (NSW) Work Health and Safety Act 2011 (NSW) Cases Cited: ACN 057 690 034 Pty Ltd v Mick Wykrota [2019] NSWSC 197 Angelopoulos v Sabatino (1995) 65 SASR 1 Brenner v First Artist Management Pty Ltd [1993] 2 VR 221 DCT Projects Pty Ltd v Champion Homes Sales Pty Ltd [2016] NSWCA 117 Health Care Complaints Commission v Ng [2015] NSWCATOD 85 Hometeam Constructions Pty Limited v McCauley [2005] NSWCA 303 Kitto v TGSBC Pty Ltd [2004] WABDT 28 Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115; [2007] HCA 61 Lawrence v Ciantar; Ciantar v Lawrence [2019] NSWSC 464 Leeda Projects Pty Ltd v Zeng (2020) 61 VR 384; [2020] VSCA 192 Lumbers v W Cook Builders Pty Ltd (in liq) (2008) 232 CLR 635; [2008] HCA 27 Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221; [1987] HCA 5 Toplace Pty Ltd v Rashidianfar [2021] NSWCATAP 235 Roude v Helwani [2020] NSWCA 310 Vasco Investments Ltd v Morgan Stanley Australia Ltd [2014] VSC 455 Woodward v D J & T L Mellross Pty Ltd [2018] NSWCATAP 179 Xtraordinary Constructions Pty Ltd v Luppino [2021] SASC 132 Texts Cited: J Edelman, McGregor on Damages (21st edition, 2020, Thomson Reuters) New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 6 May 2014 Rawlinsons Australian Construction Handbook (38th edition, 2020, Rawlinsons Publishing) Category: Principal judgment Parties: HB 19/48969: Anthony Allan Lucien (Applicant) Nerida Mullally (Respondent)