Bhatt v Scalf Pty Ltd [2022] NSWCATCD 76

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Bhatt v Scalf Pty Ltd [2022] NSWCATCD 76 Hearing dates: 1 February 2022 Date of orders: 9 May 2022 Decision date: 09 May 2022 Jurisdiction: Consumer and Commercial Division Before: D Goldstein, Senior Member Decision: The renewal application is dismissed. Catchwords: RENEWAL OF PROCEEDINGS – Time for commencing proceedings – Section 18E of the Home Building Act 1989 – Major defects – Elements of a major defect that must be established Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Home Building Act 1989 (NSW) Cases Cited: Bondarek v NSW Land and Housing Corporation [2018] NSWCATAP 299 X-Build Construction Services Pty Ltd v O'Rourke [2020] NSWCATAP 181 Texts Cited: None cited Category: Principal judgment Parties: Kunal Bhatt (First Applicant) Kirtiben Bhatt (Second Applicant) Scalf Pty Ltd (Respondent) Representation: First Applicant (Self-represented) Second Applicant (Self-represented) Respondent (Self-represented) File Number(s): HB 21/20843 Publication restriction: Nil

REASONS FOR DECISION 1. This is a renewal application made under clause 8 of Schedule 4 of the Civil and Administrative Tribunal Act 2013 ('CAT' Act). 2. On 22 October 2020 a decision which was later amended under s63 of the CAT Act required the respondent to carry out the following work ('work order'): 'All defects referred to in the Fair Trading report dated 15 July 2019 other than those referred to in 1(b), (c) and (d) of the Tribunal orders made on 5 September 2019 are to be completed by Scalf Pty Ltd within 90 days of the payment of the sum of $41,281.14 as referred to in order 1' 1. The applicants state that the respondent did not complete the work referred to in the work order. They highlighted the following work in the Fair Trading report dated 15 July 2019 which they say that the respondent did not attend to: Item 3. 'Roofer' Leaking downpipe Item 4. 'Gyprocker' Ground floor Main Bedroom Ensuite of main dwelling required remedial work to address cut-out damage' Item 5. 'Electrician' Wall switches and power points require the installation of covers to main dwelling Item 6. 'Carpenter' Installation of waterproof silicone sealant to junctions of walls Item 7. 'Cleaner' final cleaning is identified as incomplete to the garage of the main dwelling Item 8. 'Painter' Painting is identified as incomplete to wall/ceiling surfaces Item 10. 'Concrete' installation of concrete pavement to entrance to granny flat is confirmed as incomplete Item 11. 'Drainer' Sewer drainage work as observed to the rear land of the main dwelling is identified as incomplete Item 12. 'Gap filler' Incomplete work identified regarding the installation of flexible waterproof sealant to junction between cabinetry and wall surfaces' 1. These proceedings have had a long history. It is necessary that with this decision that there be an end to the litigation between the parties. Given the history of these proceedings I am not minded to make another work order. On 1 October 2021, I made the following order at a directions hearing: 'The Tribunal made a consent work order on 5 September 2019. Renewal proceedings were brought from those work orders and were heard on 13 July 2020 with the decision given on 22 October 2020. Now these proceedings are the second renewal proceedings. The Tribunal will not make another work order. A money order will be made if the applicants are successful.' 1. The applicants also raised numerous other defects which were additional to the items contained within the work order. 2. In bringing this application the applicants do not rely on an expert report. The documents that the applicants rely on were filed by them on 16 July and on 25 October 2021. The respondent relies on documents filed on 28 September 2021 and 16 November 2021. I accept all of the documents filed by the parties as evidence in the proceedings. 3. Amongst the documents that they have filed, the applicants rely on a Fixout Proposal that they received from MASTA Homes to prove and substantiate their claim. 4. I have made orders which dismiss the applicants' renewal application. The applicants have failed to file evidence which is sufficient to persuade me that the respondent failed to comply with the work order that was made in the 22 October 2020 decision. The applicants have also failed to establish by cogent evidence the costs associated with a failure to comply with the work order, if found. The MASTA Homes proposal is general and does not deal with the specific items of work referred to in the work order. In the hearing the respondent made submissions in answer to each matter raised by the applicants. In these reasons I have not set out all of the respondent's submissions because I have found that the applicant failed to establish by cogent evidence that the respondent failed to comply with the work orders. 5. I will deal with each of the items that have been raised by the applicants