Chen v Austral Built Pty Ltd [2022] NSWCATAP 67

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Chen v Austral Built Pty Ltd [2022] NSWCATAP 67 Hearing dates: 17 February 2022 Date of orders: 15 March 2022 Decision date: 15 March 2022 Jurisdiction: Appeal Panel Before: The Hon D A Cowdroy, AO QC, Principal Member D Charles, Senior Member Decision: 1. The appeal is upheld in respect of order 2 made on 6 October 2021 in the Tribunal proceedings constituted by file no HB 21/26484 (the first instance proceedings). 2. Order 2 in the first instance proceedings is set aside and in substitution the Appeal Panel orders: a) Within two months of the date of publication of these orders, pursuant to s 48O(1)(c) of the Home Building Act 1989 (NSW), the respondent is to prepare, or cause to be prepared, a sewer service diagram for completion of the residential building work the subject of the appellant's application in the first instance proceedings, is to arrange with NSW Fair Trading for all necessary inspections to take place, and is also to arrange for the issue of a certificate of compliance in respect of the sewerage and plumbing works carried out by the respondent under its Building Contract with the appellant dated 14 September 2017 for the construction of a Two Bedroom Granny Flat with tiled roof attached with a single garage; b) Pursuant to Schedule 4 Clause 8 of the Civil and Administrative Tribunal Act, 2013 (NSW) the appellant has leave to renew the proceedings in the Tribunal's Consumer and Commercial Division if there is non-compliance with order 2(a) by the respondent. Catchwords: APPEAL – error of law – scope of works in contract for residential building work – obligation of builder to provide sewer service diagram – work and services order made Legislation Cited: Home Building Act 1989 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: Shell UK Limited v Lostock Garages Ltd [1976] 1 WLR 1187 Miller v Hancock [1893) 2 QB 177 Liverpool City Council v Irwin [1977) AC 239 Commonwealth Bank of Australia Ltd v Parker (2014) 253 CLR 169; [2014) HCA 32 Copyright Agency Ltd v New South Wales (2008) 233 CLR 279; (2008) HCA 35 Texts Cited: None cited Category: Principal judgment Parties: Jane Chen (Appellant)