Moody v M K Building Services Group Pty Ltd [2022] NSWCATAP 212

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Moody v M K Building Services Group Pty Ltd [2022] NSWCATAP 212 Hearing dates: 6 June 2022 Date of orders: 29 June 2022 Decision date: 29 June 2022 Jurisdiction: Appeal Panel Before: G Curtin SC, Senior Member D Goldstein, Senior Member Decision: 1. Appeal upheld. 2. The orders of the Tribunal dated 25 February 2022 are set aside. 3. In lieu thereof the respondent is ordered to pay the appellants $4,500 immediately. Catchwords: APPEAL – NSW Civil and Administrative Tribunal – internal appeal – Tribunal erred in fundamentally misunderstanding the appellants' case and was therefore a constructive failure to exercise jurisdiction – restitution – money had and received – total failure of consideration – what is total – trivial or de minis benefit – benefit judged from the position of the innocent party – severability or apportionment of consideration BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — building dispute — rectification order – mandatory consideration – failure to consider a question of law Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 36, 38(2) Home Building Act 1989 (NSW), s 48MA Cases Cited: Australia and New Zealand Banking Group Limited v Londish [2013] NSWSC 1423 Bauskis v Liew [2013] NSWCA 297 Cominos v Di Rico [2016] NSWCATAP 5 David Securities Pty Limited v Commonwealth Bank of Australia (1992) 175 CLR 353; [1992] HCA 353 Galdona v Peacock [2017] NSWCATAP 64 Goodwin v Commissioner of Police [2012] NSWCA 379 Hamod v State of New South Wales [2011] NSWCA 367 John McDonald Building Services Pty Ltd v Gusa [2022] NSWCATAP 60 Khan v Kang [2014] NSWCATAP 48 Leung v Alexakis [2018] NSWCATAP 11 Luo v Zhai [2015] FCA 350 Mendonca v Legal Services Commissioner [2020] NSWCA 84 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Rover International Ltd v Cannon Film Ltd [1989] 1 WLR 912 State Super SAS Trustee Corporation v Comes [2013] NSWCA 257 Texts Cited: Nil Category: Principal judgment Parties: Nicole Moody (First Appellant) Daniel Clarke (Second Appellant) M K Building Services Group Pty Ltd (Respondent) Representation: First Appellant (Self-represented) Second Appellant (First Appellant) John (Fadi) Khammo (Director of the Respondent) File Number(s): 2022/00089356 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 25 February 2022 Before: P Zammit, General Member File Number(s): GEN 21/50702