Anderson v Gold Emporium Pty Ltd t/a Cordony Constructions [2022] NSWCATCD 110

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Anderson v Gold Emporium Pty Ltd t/a Cordony Constructions [2022] NSWCATCD 110 Hearing dates: 22, 23 February, 23 April and 6 October 2021 Date of orders: 21 June 2022 Decision date: 21 June 2022 Jurisdiction: Consumer and Commercial Division Before: D Robertson, Senior Member Decision: (1) Within four months of the date of publication of these reasons the respondent is to carry out on the applicants' property the following rectification work in a proper and workmanlike manner: (a) Remove the floor tiles and tile screed and the existing membrane in the shower and bath area only of the main bathroom, re-screed the prepared concrete substrate affording a minimum of 1:80 grade, waterproof the area with a compatible polyurethane waterproofing product in accordance with manufacturer's requirements, and replace tiles. (b) Install a 50 mm water stop angle at the bifold doors separating the interior of the house from the internal al fresco area of the rear deck, including regrading and resurfacing the rear deck to the extent necessary to enable the installation of the water stop angle, or, at the respondent's option, installing a grated drain at the boundary of the internal and external areas of the deck. (c) Carry out the scopes of works described in the "Preliminary Bill of Quantities and Cost Estimate for Rectification of Additional Defects" dated 11 September 2020 prepared by Mr Mathew Poole, in respect of items identified as ADD 4, ADD 8 to 11, ADD 12 to 14 and ADD 15 to 19. (2) Subject to order (3) below, the respondent is to pay the applicants' costs of the proceedings as agreed or assessed. (3) Either party may file and serve written submissions within 14 days of the date of this decision seeking a different order in relation to the costs of the proceedings and in such event order (2) above will cease to have effect. (4) If either party files submissions in accordance with order (3), the other party may file submissions in response within a further 14 days. (5) Any submissions filed in accordance with orders (3) and (4) must address the question whether the question of costs may be determined on the papers and without a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). Catchwords: BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – Breach of statutory warranties – Section 48MA - Preferred outcome Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Environmental Planning and Assessment Act 1979 (NSW) Home Building Act 1989 (NSW) Swimming Pools Act 1992 (NSW) Cases Cited: Bell Solar Pty Limited t/as Sunboost v Anderson [2021] NSWCATAP 278 Bellgrove v Eldridge (1954) 90 CLR 613 Gallagher v Masters Installation Pty Ltd [2017] NSWCATAP 117 Hadley v Baxendale (1854) 9 Exch 341 Texts Cited: Nil Category: Principal judgment Parties: Mark Anderson and Kathy Anderson (Applicants) Gold Emporium Pty Ltd t/a Cordony Constructions (Respondent) Representation: Counsel: T Kent (Respondent)