Pawar v Willoughby Homes Pty Ltd [2021] NSWCATCD 161

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Pawar v Willoughby Homes Pty Ltd [2021] NSWCATCD 161 Hearing dates: 27, 28 January 2021 Date of orders: 04 March 2021 Decision date: 04 March 2021 Jurisdiction: Consumer and Commercial Division Before: Graham Ellis SC, Senior Member Decision: 1. The builder is to carry out rectification work in a proper and workmanlike manner in order to address the defects identified as Items 1 to 10 (inclusive) and 25 in the Scott Schedule annexed Mr O'Donnell's 24 June 2019 report. 2. Mr O'Donnell (or such other person as he in his sole discretion may nominate if he is unavailable) is to act as an independent expert in relation to that rectification work and not as an advocate for either the owner or the builder. 3. Any communication by the owner, the builder or the independent expert in relation to these orders is to be in writing and is to be sent to both the other parties. 4. No later than seven (7) days from the date of this order, the builder is to provide the independent expert with a work method statement which specifies what work the builder proposes to undertake in order to rectify the defects. 5. No later than seven (7) days from the receipt of that work method statement, the independent expert is to either approve that work method statement or amend it if he considers such an amendment necessary and reasonable. 6. The owner is to provide reasonable access to the builder who should provide not less than 24 hours' notice of anyone intending to carry out that rectification work. 7. There are to be three inspections during the course of the rectification work: (1) initially, in order to ascertain the current situation, (2) during the work, at such hold point as the independent expert considers reasonable, and (3) upon completion of the work. 8. The rectification work is to be completed within twelve (12) weeks of the date of that approved or amended work method statement, but that period may be extended by such period as the independent expert considers reasonable having regard to matters including but not limited to inclement weather and any movement restrictions due to COVID-19 pandemic. 9. The cost of the independent expert is to be borne by the builder. 10. The builder is to pay the owner $3,450 immediately. 11. On or before 18 March 2021 any application for costs is to be made by providing written submissions to the Tribunal and the other party. 12. On or before 01 April 2021 any response to any such application is to be made by providing written submissions to the Tribunal and the other party. 13. Any submissions on costs are to address the question of whether costs can be determined on the papers. Catchwords: BUILDING AND CONSTRUCTION - Contract - Defects - Work order PRACTICE AND PROCEDURE - Renewal proceedings - Whether further work order appropriate Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Home Building Act 1989 (NSW) Limitation Act 1969 (NSW) Cases Cited: 3D Design & Build Pty Ltd v Lynch [2016] NSWCATAP 229 AHB v NSW Trustee and Guardian [2014] NSWCA 40 Blessed Sydney Constructions Pty Ltd v Vasudevan [2018] NSWCATAP 98 Bondarek v NSW Land and Housing Corporation [2018] NSWCATAP 299 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46 Galdona v Peacock [2017] NSWCATAP 64 Hanna v Kersten [2019] NSWCATCD 26 Jones v Dunkel [1959] HCA 8 Maiolo v Chiarelli [2016] NSWCATAP 81 Minifie v Maxwell [2020] NSWCATAP 30 The Owners Strata Plan No 79642 v Five D Pty Ltd [2020] NSWCATAP 110 Texts Cited: Nil Category: Principal judgment Parties: Kamaljit Pawar (Applicant) Willoughby Homes Pty Ltd (Respondent) Representation: Counsel: Mr F Salama (Respondent)