Intelligent Building Pty Ltd v Ibrahim [2023] NSWCATAP 170

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Intelligent Building Pty Ltd v Ibrahim [2023] NSWCATAP 170 Hearing dates: 24 March 2023 Date of orders: 26 June 2023 Decision date: 26 June 2023 Jurisdiction: Appeal Panel Before: G Sarginson, Senior Member P H Molony, Senior Member Decision: (1) Appeal allowed. (2) The order numbered 1, with respect to the owners application in HB 22/42389 made on 6 February 2023, is set aside and, in its place, the following order is made: "The claim is dismissed." (3) The order numbered 2, with respect to the builder's cross-application in HB22/54881 made on 6 February 2023, is set aside and, in its place, the following order is made: "The respondents shall pay the applicant $885.00 within 30 days of these reasons." (4) If any party seeks to make an application for costs of the appeal: (a) That party is to so inform the other parties within 14 days of the date of these reasons; (b) The applicant(s) for costs is to lodge with the Appeal Panel and serve on the respondent(s) to the costs application any written submissions of no more than 2000 words on or before 14 days from the date of these reasons; (c) The respondent(s) to any costs application is to lodge with the Appeal Panel and serve on the applicant(s) for costs any written submissions of no more than 2000 words on or before 28 days from the date of these reasons; (d) Any reply submissions limited to 1000 words are to be lodged with the Appeal Panel and served within 35 days of the date of these reasons; (e) the parties are to indicate in their submissions whether they consent to an order dispensing with an oral hearing of the costs application, and if they do not consent, make submissions as to why an oral hearing should be conducted rather than costs being determined on the papers. Catchwords: APPEAL – error of law – adequacy of reasons – measure of damages for breach of contract – whether oral variation of contract enforceable – whether appeal should be remitted for hearing. CONTRACT – measure of damages for breach of home building contract – whether "overpayment" correct measure Legislation Cited: Building and Construction Industry Security Of Payments Act 1999 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Home Building Act 1989 (NSW) Residential Tenancies Act 2010 (NSW) Cases Cited: Bellgrove v Eldridge (1954) 90 CLR 613 Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 Equuscorp Pty Ltd v Haxton; Equuscorp Pty Ltd v Bassat; Equuscorp Pty Ltd v Cunningham's Warehouse Sales Pty Ltd [2012] HCA 7 Jamaican Coffee Kitchen Pty Ltd trading as Dushan & Shelby Trust v M20 Pty Ltd [2022] NSWCATAP 203 Metricon Homes Pty Ltd v Softley [2016] VSCA 60 New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 Paraiso v CBS Build Pty Ltd [2020] NSWSC 190 Pavey & Matthews Pty Ltd v Paul [1987] HCA 5 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 SDL Project Solutions Pty Ltd v Kim; Kim v SDL Project Solutions Pty Ltd [2022] NSWCATCD 10 Sabouni v Revelop Building and Developments Pty Ltd [2021] NSWSC 31 Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272 Volkswagen Group Australia Pty Ltd v Saad [2022] NSWCATAP 133 Walker Group Constructions Pty Ltd v Tzaneros Investments Pty Ltd [2017] NSWCA 27 Texts Cited: None Category: Principal judgment Parties: Intelligent Building Pty Ltd (Appellant) Samwaiel Ibrahim and Martina George (First Respondents) Talaat Nasralla (Second Respondent) Representation: A Hanna (Agent)(Appellant) First Respondents (Self-represented) Second Respondent (No appearance) File Number(s): 2023/00054663 Publication restriction: None Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 6 February 2023 Before: Dr P Briggs, General Member File Number(s): HB 22/42389 HB 22/54881