Shakiri v Holland [2024] NSWCATAP 28

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Shakiri v Holland [2024] NSWCATAP 28 Hearing dates: 6 December 2023 Date of orders: 27 February 2024 Decision date: 27 February 2024 Jurisdiction: Appeal Panel Before: G Sarginson, Senior Member P Molony, Senior Member Decision: 1. The appeal against the decision in HB 23/05934 is allowed. 2. Order 1 made by the Tribunal on 28 July 2023 in HB23/05934 is set aside and, in its place, the following order is made: Application dismissed. 3. The respondent Matt Holland is to pay the appellant Sam Shakiri the sum of $16,638.34, being the return of money paid under an order that has been set aside on appeal, within 14 days of this order. 4. With respect the appeal against the decision in HB 23/26657: (a) Leave to appeal based on the availability of new evidence is refused. (b) Order 2 made by the Tribunal on 28 July 2023 in HB 23/05934 is varied to read:

Mr Holland is to rectify the driveway only by to filling any gaps in the driveway with concrete crack filler and to colour seal the concrete by 8 April 2024, and the application is otherwise dismissed. (c) The appeal is otherwise dismissed. Catchwords: APPEALS – internal appeal - significant new evidence not reasonably available -No grounds for leave established – appeal against order enforcing unwritten contract for residential building work to a value exceeding $30,000 allowed – s 7 and s 10 Home Building Act 1989 (NSW) – order on appeal – order for return of monies paid pursuant to order set aside on appeal. EVIDENCE – opinion evidence – consequences of non-compliance with NCAT Procedural Direction 3 – Expert Evidence – affects weight not admissibility - expert report containing bare assertions – given no weight. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Design and Building Practitioners Act 2020 (NSW) Evidence Act 1995 (NSW) Home Building Act 1989 (NSW) Home Building Regulation 2014 (NSW) Workers Compensation Commission Rules 2003 (NSW) (Repealed) Cases Cited: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 Anjoul v Anjoul [2021] NSWSC 592 ASIC v Rich & Ors [2005] NSWCA 152; (2005) 218 ALR 764 Brookfield Multiplex Ltd v Owners Corporation Strat Plan 61288 (2014) 254 CLR 185 CEO of Customs v AMI Toyota Ltd (2000) 102 FCR 578 Chapman v McLaughlin [2016] NSWCATAP 212 Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5, Craig v The State of South Australia (1995) 184 CLR 163 Davie v Lord Provost, Magistrates and Councillors of the City of Edinburgh [1953] SC 34 Dyna Constructions Pty Ltd v Bocco Developments Pty Ltd [2021] NSWDC 507 Dyjecinska v Step-Up Renovations (NSW) Pty Ltd; Step-Up Renovations (NSW) Pty Ltd v Dyjecinska [2023] NSWCATAP 36 Elsayed v Tassone [2022] NSWCATAP 69 Forster v Hunter New England Area Health Service [2010] NSWCA 106 Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11 John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Khan v Khan [2014] NSWCATAP 48 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 Mann v Patterson Constructions Pty Ltd [2019] HCA 32; 267 CLR 560; 93 ALJR 1164 Pavey & Matthews Pty Ltd v Paul [1987] HCA 5, 162 CLR 221 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Sengos v Hassan [2022] NSWCATAP 366 Southwestern Sydney Area Health Service v Edmonds [2007] NSWCA 16 The Owners – Strata Plan No 84674 v Pafburn Pty Ltd [2023] NSWSC 116 Vujica v TNM Roofing Pty Ltd [2022] NSWCATAP 305 Whear v Kids on Hayes Street Pty Ltd [2021] NSWCATAP 123 Texts Cited: (Australian Building Codes Board) (2016) National Construction Code NCAT Procedural Direction 3 – Expert Evidence Category: Principal judgment Parties: Sam Shakiri (First Appellant) Libarda Shakiri (Second Appellant) Matt Holland (Respondent) Representation: P Matters (agent) (Appellants) Respondent (self-represented) File Number(s): 2023/00261710 Publication restriction: None Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: NA Date of Decision: 31 July 2023 Before: R Titterton, Senior Member File Number(s): HB23/05934 HB23/26657