Kapeller v BH Australia Pty Ltd [2020] NSWCATCD 20

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Kapeller v BH Australia Pty Ltd [2020] NSWCATCD 20 Hearing dates: On the papers Date of orders: 8 January 2020 Decision date: 08 January 2020 Jurisdiction: Consumer and Commercial Division Before: D Goldstein, Senior Member Decision: The Notice of Order issued on 8 January 2020 is amended under Section 63 of the Civil and Administrative Tribunal Act 2013, and should read as follows: 1. A hearing in respect of Applications HB 19/0928 & HB 19/09300 is dispensed with under section 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). 2. BH Australia Constructions Pty Ltd must pay Phillip Kapeller and Rachael Cesnik the sum of $191,336.00 immediately. 3. In the event that a party wishes to bring a costs application, the costs application must be lodged in the Tribunal and served on the costs respondent within 14 days of the date of the orders in these proceedings either attaching or referring to the documents relied upon in support of the application. 4. The costs respondent will have 14 days after the date they or it receives the application to lodge in the Tribunal and serve on the costs applicant their or its submissions, if any, in response to the cost applicant's costs application, such submissions either attaching or referring to the documents relied upon. 5. The cost applicant will have 14 days after the date they or it receives the cost respondent's submissions to lodge in the Tribunal and serve on the costs respondent their or its submissions, if any, in reply, such submissions either attaching or referring to the documents relied upon. 6. The parties must state in their submissions whether or not they consent to the costs application being determined on the basis of the parties written submissions and attached documents, if any, without the need for a hearing. 7. Subject to the parties' submissions, the Tribunal will determine any costs application on the basis of the papers lodged in the Tribunal. Catchwords: BUILDING AND CONSTRUCTION — Home Building — Repudiation — Failing to proceed with due diligence Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Home Building Act 1989 (NSW) Cases Cited: BH Australia Constructions Pty Ltd v Kapeller [2019] NSWSC 1086 DB Homes Australia Pty Limited v Kes [2019] NSWCATAP 221 eMove Pty Ltd v Dickinson [2015] NSWCATAP 94 Hometeam Constructions Pty Ltd v McCauley [2005] NSWCA 303 Kapeller v BH Australia Constructions Pty Ltd [2019] NSWCATAP 40 Koompahtoo Local Aboriginal Land Council & Anor v Sanpine Pty Ltd [2007] HCA 61; (2007) 233 CLR 115 Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd (1938) 38 SR (NSW) 632 Texts Cited: Nil Category: Principal judgment Parties: Phillip Kapeller (First Applicant) Rachael Cesnik (Second Applicant) Respondent: BH Australia Pty Ltd (Respondent) Representation: Counsel: P Williams (Respondent)