Jones v Mega Awesome Kapow Constructions Pty Ltd [2024] NSWCATAP 86

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Jones v Mega Awesome Kapow Constructions Pty Ltd [2024] NSWCATAP 86 Hearing dates: 19 February 2024 Date of orders: 17 May 2024 Decision date: 17 May 2024 Jurisdiction: Appeal Panel Before: L Wilson, Senior Member P H Molony, Senior Member Decision: (1) Insofar as it is necessary, leave to appeal against an interlocutory decision is granted. (2) Appeal allowed. (3) The order made by the Tribunal under s 63 of the Civil and Administrative Tribunal Act 2013 (NSW) (in paragraph [13] of the decision dated 29 September 2023) is set aside. (4) Order 1 made by the Tribunal on 29 September 2023 is set aside and the following order substituted for it: Peter Jones must pay Mega Awesome Kapow Constructions Pty Ltd $19,005.40 immediately. (5) With respect to the cost issues arising from both appeals (2023/337063 and 2023/347930): (i) The costs order made by the Tribunal on 19 December 2023 is stayed pending further order of the Appeal Panel. (ii) The appellant shall file and serve any submissions it wishes to make with respect to the costs of these appeals and of the proceedings below, and whether those issues should be determined without a hearing, within 21 days of the date of this order. (iii) The respondent shall file and serve any submissions it wishes to make with respect to the costs of these appeals and of the proceedings below, and whether those issues should be determined without a hearing, within 42 days of the date of this order. (iv) The appellant shall file and serve any submissions it wishes to make in reply within 49 days of the date of this order. Catchwords: APPEALS – Particular Bodies – NCAT – power to correct decisions under s 63 of the Civil and Administrative Tribunal Act 2013 – whether own motion decision to amend previous order by increasing amount claimed is the correction of an obvious error. APPEALS – leave to appeal – whether decision under s 63 of the decision Civil and Administrative Tribunal Act 2013 is an ancillary or interlocutory decision – whether leave to appeal required - leave to appeal granted. BUILDING AND CONSTRUCTION –uninsured building work – builder given leave to recover on a quantum meruit for identified work – s 94 Home Building Act 1989 – whether part-payments made by homeowner to be taken into account and credited to homeowner when calculating amount owning on quantum meruit – whether part-payment for work can be set-off against amount claimed for work on quantum meruit - equitable set-off - onus on builder to prove work done. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) s 4, 38, 63, 80, 81 and cl 12(1) of Sch 4 Home Building Act 1989 (NSW) s 7, 94 Cases Cited: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 AQO v Minister for Finance and Services [2016] NSWCA 248 CEO of Customs v AMI Toyota Ltd (2000) 102 FCR 578 Collins v Urban [2014] NSWCATAP 17 Cumming v Deadman [2022] NSWCATAP 43 Commissioner of Police, New South Wales Police Force v Fine [2014] NSWCATAP 24 Commonwealth v Amman Aviation (1991) 174 CLR 64 Craig v The State of South Australia (1995) 184 CLR 163 Eddy Lau Constructions Pty Ltd v Transdevelopment Enterprise Pty Ltd [2004] NSWSC 273 Elsayed v Tassone [2022] NSWCATAP 69 Gallagher v Masters Installation Pty Ltd [2017] NSWCATAP 117 Hawes v Dean [2014] NSWCA 380 HP Mercantile Pty Ltd v Dierickx [2013] NSWCA 479 James v Commonwealth Bank of Australia (1992) 37 FCR 445 John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597 New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 Palaniappan v Westpac Banking Corporation [2016] WASCA 72 Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221 Riverside Motors Pty Ltd v Abrahams [1945] VLR 45 Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 Star City Pty Ltd v Hurst (EOD) [2009] NSWADTAP 35 Sunaust Properties Pty Ltd t/as Central Sydney Realty v The Owners – Strata Plan No 64807 [2023] NSWCA 188 Wollongong Coal Ltd v Gujarat NRE India Pty Ltd [2019] NSWCA 135 Texts Cited: None Category: Principal judgment Parties: Peter Jones (Appellant) Mega Awesome Kapow Constructions Pty Ltd (Respondent) Representation: Counsel: C A Hamilton-Jewel (Appellant) D Hand (Respondent)