Dyjecinska v Step-Up Renovations (NSW) Pty Ltd; Step-Up Renovations (NSW) Pty Ltd v Dyjecinska [2023] NSWCATAP 36

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Dyjecinska v Step-Up Renovations (NSW) Pty Ltd; Step-Up Renovations (NSW) Pty Ltd v Dyjecinska [2023] NSWCATAP 36 Hearing dates: 6 June 2022 and 4 July 2022 Final Submissions 11 October 2022 Date of orders: 8 February 2023 Decision date: 08 February 2023 Jurisdiction: Appeal Panel Before: S Thode, Principal Member P H Molony, Senior Member Decision: 1. In 2022/00059238 the appeal is allowed in part. 2. Order 1 made in HB 21/13199 and HB 21/20544 on 11 February 2022 is set aside. 3. In lieu thereof the Appeal Panel makes the following orders: 4. Izabela Dyjecinska must pay Step Up Renovations (NSW) Pty Ltd the sum of $102,187.30 immediately. 5. 2022/00070996 is dismissed. 6. Each party is to pay its own costs of both appeals. 7. If either party does not agree with costs order six (6) above the costs order ceases to have effect. 8. Any party seeking a different costs order must serve submissions on the question of costs within fourteen (14) days of publication of the reasons for decision. 9. Any submissions in response on the question of costs must be served within twenty-one (21) days of publication of the reasons for decision. 10. Any submissions in reply on the question of costs must be served within twenty-eight (28) days of publication of the reasons for decision. 11. The parties must file with the Tribunal one complete copy of all costs submissions, collated in a folder, within thirty (30) days of publication of the reasons for decision. The submissions should address whether a hearing on the question of costs can be dispensed with. Catchwords: APPEALS – Home Building Act 1989 (NSW) – Enforceability of contract – requirement for writing – whether non-compliance with s 7 requirements renders contact unenforceable by contractor – s10 – whether rectification work is a reasonable course to adopt Legislation Cited: Builders Licensing Act 1971 Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Regulation 2013 (NSW) District Court Act 1973 (NSW) Electronic Transactions Act 1999 (Cth) Home Building Act 1989 (NSW) Home Building Regulation 2014 (NSW) Statute Law (Miscellaneous Provisions) Act (No.2) 2001 Cases Cited: Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd [2019] NSWCA 61 Bellgrove v Eldridge (1954) 90 CLR 613 Brewarrina Shire Council v Beckhaus Civil Pty Ltd [2005] NSWCA 248 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2 Collins v Urban [2014] NSWCATAP 17 Coulton v Holcombe [1986] HCA 33 Di Blasio Constructions Pty Ltd [2014] NSWSC 10671 Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 214 CLR 496 Dyna Constructions Pty Ltd v Bocco Developments Pty Ltd [2021] NSWDC 507 Glencore Coal Assets Australia Pty Ltd v Australian Competition Tribunal (2020) 280 FCR 194 Hayward v Timilty [2009] NSWDC 54 Henadeck Pty Ltd v Independent Liquor and Gaming Authority; Niraula v Independent Liquor and Gaming Authority [2020] NSWCATAP 200 House v R (1936) 55 CLR 499 Mann v Paterson Constructions Pty Ltd [2019] HCA 32; 267 CLR 560; 93 ALJR 1164; 373 ALR 1 McInnes v Rheem Australia Pty Limited [2021] NSWCA 89 New South Wales Land and Housing Corporation v Orr [2019] NSWCAT 23 Owners of Strata Plan v MD Constructions Pty Ltd [2016] NSWSC 162 Paraiso v CBS Build Pty Ltd [2020] NSWSC 190 Pavey & Matthews Pty Ltd v Paul [1987] HCA 5; 162 CLR 221; 61 ALJR 151; 69 ALR 577 Project Blue Sky [1998] HCA 28; 194 CLR 355; 72 ALJR 841; 153 ALR 490 R v Longshaw (1990) 20 NSWLR 554 SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34 Vujica v TNM Roofing Pty Ltd [2022] NSWCATAP 305 Westpoint Management Ltd v Chocolate Factory Apartments Pty Ltd [2007] NSWCA 253 Texts Cited: Hall and Macken, Statutory Interpretation: Principles and Context 2021, Lexis Nexis Halsbury's Law of Australia, Lexis Nexis Pearce and Geddes, Statutory Interpretation in Australia (9th Ed), Lexis Nexis Category: Principal judgment Parties: Izabela Dyjecinska (Appellant) Step Up Renovations Pty Ltd (Respondent) Representation: Solicitors: M Sheldon, W Marshall instructed by Lazarus Legal (Appellant) B Lloyd instructed by Brander Smith McKnight Lawyers (Respondent) File Number(s): 2022/00059238; 2022/00070996 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 25 November 2021 Before: D Goldstein, Senior Member File Number(s): HB 21/13199 and HB 21/20544