NuStone v McInerney [2022] NSWCATCD 23

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: NuStone v McInerney [2022] NSWCATCD 23 Hearing dates: 24 and 25 August 2021 Submissions close 25 November 2021 Date of orders: 19 January 2022 Decision date: 19 January 2022 Jurisdiction: Consumer and Commercial Division Before: S Thode, Senior Member Decision: 1. In HB 20/36393 Nu-Stone Building Pty Ltd is to pay $114,557.17 to Garry and Gladys McInerney immediately. 2. HB 20/15757 is otherwise dismissed. 3. I order the builder to pay the owners' costs of the applications on the ordinary basis as agreed or assessed. 4. In the event either party applies for different costs orders, the order for costs made in order (3) above ceases to have effect. 5. For any different application for costs, the following directions apply to that application: (a) The applicant for costs (costs applicant) is to file and serve any evidence and submissions on costs within 14 days of the date of publication of these orders; (b) The respondent to the costs application (costs respondent) is to file and serve any evidence and submissions in reply within 14 days of the date of publication of these orders. (c) The costs applicant is to file and serve any submissions in reply within 21 days from the date of publication of these orders; (d) The submissions of the parties are to include submissions about whether an order should be made dispensing with a hearing of the costs application pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013. (e) In the event that both parties apply for a different costs order, an indexed and paginated bundle of all costs submissions is to be provided to the Tribunal at the end of the submission period. Catchwords: BUILDING AND CONSTRUCTION —Home Building – Defects claim – Repudiation – Termination – Damages for breach of contract – term of good faith implied into the contract Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Home Building Act 1989 (NSW) Cases Cited: Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349 BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266 at 282-3; 16 ALR 363 Burger King Corp v Hungry Jacks Pty Ltd [2001] NSWCA 187 Insight Oceania v Philips Electronics [2008] NSWSC 710 Nayack v Rockwell Constructions Pty Limited [2017] NSWCATAP 18 Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234 Saxby Bridge Mortgages Pty Ltd v Saxby Bridge Pty Ltd [2000] NSWSC 187 Simmonds v Rust; Rust v Simmonds [2018] NSWCATCD 75 Tresedar Pty Ltd v Property Builders (Constructions) Pty Ltd (In Liquidation) [2014] NSWSC 382 United Group Rail Services Limited v Rail Corporation New South Wales [2009] NSWCA 177 Texts Cited: Nil Category: Principal judgment Parties: HB 20/15757: Nu-Stone Building Pty Ltd (Applicant) Garry and Gladys McInerney (Respondents)