Lucien v Mullally [2022] NSWCATAP 257

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Lucien v Mullally [2022] NSWCATAP 257 Hearing dates: On the papers Date of orders: 18 February 2022 Decision date: 04 August 2022 Jurisdiction: Appeal Panel Before: S Thode, Senior Member AR Boxall, Senior Member Decision: 1. Leave to Appeal refused. 2. Appeal dismissed. 3. The Appellant is to pay the Respondent's costs of the appeal as agreed or assessed on the ordinary basis. Catchwords: APPEALS - RESIDENTIAL BUILDING – Home Building Act 1989 – whether finding against the weight of evidence Category: Principal judgment Parties: Anthony Allen Lucien (Appellant) Nerida Mullally (Respondent) Representation: Counsel: J Hyde (Appellant) M Fraser (Respondent)

Solicitors: Wilkinson Building & Construction Lawyers Pty Ltd (Appellant) MBA Lawyers (Respondent) File Number(s): 2021/00362358 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: None Applicable Date of Decision: 25 November 2021 Before: G Blake SC, Senior Member File Number(s): HB19/48969; HB 19/56785

REASONS FOR DECISION 1. The appeal concerns two proceedings which were heard together arising out of a contract to do alterations and additions at a property at Newtown entered into on 4 October 2017 between the owner, Nerida Mullally, and the builder Anthony Allen Lucien. 2. On 4 October 2017 the parties executed the contract which was in the form of a New South Wales Fair Trading Home Building Contract for work over $20,000. The contract specified a price of $812,770 inclusive of GST and comprised plans and specifications. 3. On 14 December 2018 the owner, following an altercation with the builder, called the police and told the builder to leave the site and changed the lock. Although the parties decided to continue with the contract, the owner finally terminated the contract in writing on 24 April 2019. 4. On 31 October 2019 the builder commenced proceedings HB19/48969 against the owner by filing a home building application in which he claimed $142,030.73 in debt being the total of outstanding invoices, and in quantum meruit together with interest or damages for repudiation of the contract (the builder's proceedings). 5. On 19 December 2019 the owner commenced proceedings HB 19/56785 against the builder by filing a home building application in which she claimed $127,516.07 as damages for breach of the contract being the cost of completing the works or alternatively the diminution in value of the property due to the defects in the works and the loss from the delay in completing the works (the owner's proceedings). 6. The applications were heard on 29 April 2021, 21 May 2021 and 15 September 2021 respectively. The parties filed over 4000 pages of evidence and submissions. 7. On 25 November 2021 the Tribunal published its decision ordering the builder to pay the owner the sum of $31,660.65. It is against this decision that the builder appeals.