Sayar v Al Shafi ; Al Shafii v Sayar [2022] NSWCATCD 64

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Sayar v Al Shafi ; Al Shafii v Sayar [2022] NSWCATCD 64 Hearing dates: 25 November 2021, 27 April 2022 Date of orders: 30 May 2022 Decision date: 30 May 2022 Jurisdiction: Consumer and Commercial Division Before: Graham Ellis SC, Senior Member Decision: In the proceedings HB 20/46920: (1) Sam Al Shafii is to pay Mohammad Sayar $2,973 within 14 days. (2) The Tribunal notes that the net outcome of this application and the related proceedings (HB 21/06250) is that Mohammad Sayar is to pay Sam Al Shafii $90,324 within 14 days. (3) Any submissions as to the costs of this application are to be included in the submissions as to costs made in those related proceedings. In the proceedings HB 21/06250: (1) Mohammad Sayar is to pay Sam Al Shafii $93,297 within 14 days. (2) The Tribunal notes that the net outcome of this application and the related proceedings (HB 20/46920) is that Mohammad Sayar is to pay the Sam Al Shafii $90,324 within 14 days. (3) Any submissions and evidence upon which Sam Al Shafii wishes to rely in relation to costs are to be filed and served by 13 June 2022. (4) Any submissions and evidence upon which Mohammad Sayar wishes to rely in relation to costs are to be filed and served by 27 June 2022. (5) Any submissions in reply are to be filed and served by 4 July 2022. (6) Any submissions on costs are to indicate whether the party agrees that costs can be determined on the papers, ie without a further hearing. (7) Leave is granted for any submissions on the question of costs to be lodged electronically. Catchwords: BUILDING AND CONSTRUCTION - Defective work - Duty to mitigate loss - Certificates not provided BUILDING AND CONSTRUCTION - Whether contract validly terminated by owner or builder - Status of pre-termination claims - Damages payable BUILDING AND CONSTRUCTION - Variations - Whether urgent - Amount recoverable Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Home Building Act 1989 (NSW) Cases Cited: Banco de Portugal v Waterlow and Sons [1932] AC 452 Bellgrove v Eldridge [1954] HCA 36 Brooks v Gannon Constructions Pty Limited [2017] NSWCATCD 12 Dimitropoulos v Capital Constructions Pty Ltd [2018] NSWCATAP 100 Galdona v Peacock [2017] NSWCATAP 64 Haines v Bendall [1991] HCA 15 Karacominakis v Big Country Developments Pty Ltd [2000] NSWCA 313 Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61 Kurmond Homes Pty Ltd v Marsden [2018] NSWCATAP 23 Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd [1989] HCA 23 Makita (Australia) Pty Ltd v Sprowles[2001] NSWCA 305 Mann v Paterson Pty Ltd [2019] HCA 32 McDonald v Dennys Lascelles Ltd [1933] HCA 25; 48 CLR 457 Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 Pavey & Matthews Pty Ltd v Paul [1987] HCA 5 Sargent v ASL Developments Ltd [1974] HCA 40 TC Industrial Plant Pty Ltd v Robert's Queensland Pty Ltd [1963] HCA 57 Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd (1938) 38 SR (NSW) 632 Wood Factory Pty Ltd v Kiritos Pty Ltd [1985] 2 NSWLR 105 Texts Cited: Nil Category: Principal judgment Parties: Mohammad Sayar (Applicant/Cross-respondent) Sam Al Shafii (Respondent/Cross-applicant) Representation: Counsel: S Cairns (Applicant/Cross-respondent) P Lonergan (Respondent/Cross-applicant)