Singh v Zamaneh [2023] NSWCATAP 248

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Singh v Zamaneh [2023] NSWCATAP 248 Hearing dates: 2 May 2023 Date of orders: 30 August 2023 Decision date: 30 August 2023 Jurisdiction: Appeal Panel Before: S Thode, Principal Member J S Currie, Senior Member Decision: 1. Leave to appeal refused. 2. Appeal dismissed. Catchwords: APPEALS – error on a question of law – denial of procedural fairness not established - no misapplication of law Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) sections 36 (3), 80 (2), Schedule 4 Clause 12 (1). Home Building Act 1989 (NSW) sections 4, 7, 18B, 92 and 94 Cases Cited: Collins v Urban [2014] NSWCATAP 17 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Texts Cited: Nil Category: Principal judgment Parties: Jai Singh (Appellant) Vahid Zarei Zamaneh (Respondent) Representation: Appellant (Self-represented) Respondent (Self-represented) File Number(s): 2023/00070017 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Nil Date of Decision: 10 February 2023 Before: L Wilson, Senior Member File Number(s): HB 22/53686

reasons for decision

What is this appeal about? 1. This appeal arises from a decision made on 10 February 2023 in the Consumer and Commercial Division of the Tribunal concerning residential building work, being roofing work, at a property at Moorebank owned by the appellant, Mr Jai Dhir Singh (the Owner) which was to be carried out by the respondent, Mr Vahid (Victor) Zameneh (the Builder). 2. In the Notice of Order dated 10 February 2023 the Tribunal declared that $2,200 was not due and payable by the Owner to the Builder in respect of "uninsured and unlicensed work pursuant to a contract which did not comply with the Home Building Act s.7 or at all" and dismissed the Owner's application for a money order because the Owner had not proved his case. 3. In the reasons for decision (the Reasons) the Tribunal relevantly made the following findings : 1. the contract sum of the building contract was $37,000 without GST to be added; 2. the terms of the contract required the Builder to replace "the board of ceiling and tiled roof to metal roof including materials and guttering"; 3. the Builder had done work for which he was not appropriately licensed; 4. the Owner's assertion that because he was an engineer, his evidence concerning the breach was sufficient was not accepted; 5. it was not clear what work the Builder did or contracted to do; 6. the Tribunal was not satisfied that the Builder breached the contract; and even if it had found that he had, there was no evidence of the loss or damage which flowed to the Owner; 7. because the Builder had not lodged a cross-application or any application against the Owner, he could not, in those proceedings, obtain an order against the Owner; and 8. it appeared that the Builder was not entitled to any payment from the Owner because he had not complied with sections 4, 7, 92, and 94 of the Home Building Act 1989 (NSW) (the HB Act).; and that was the basis of the Tribunal's declaration above that that $2,200 ( being the balance which the Owner had conceded was owing) was not properly due and payable by the Owner to the Builder. 1. The Tribunal Member's calculation of that $2,200 arises from the following observations and findings by her: 1. the original agreed contract price was $37,700, of which $31,500 had been paid; leaving a balance of $6,200; 2. the Owner had asserted at the Tribunal hearing that, on or about 14 September 2022 the parties had varied the contract by agreeing to reduce the scope of the works to remove painting and electrical work and to reduce the contract sum by $4,400, so that the revised contract sum was $33,300; 3. that variation was recorded by the Owner in an email of 14 September 2022, but the Builder had never replied to that email and at the hearing he denied that a variation to the contract had been made; 4. the Owner had conceded that the Builder had not agreed to the reduction in the works by an amount which the Reasons record as "$4000" (on page 2 at the 7th paragraph); and 5. as the Member recorded on page 3 at the 4th paragraph of the Reasons, the Owner agreed that he still owed the Builder $6,200 less the $4,000 reduction (on the basis of the variation which the Tribunal did not find or accept) so the Owner had agreed that $2,200 was still owing.