Nu-Stone Building Pty Ltd v McInerney; McInerney v Nu-Stone Building Pty Ltd (No 2) [2024] NSWCATAP 87

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Nu-Stone Building Pty Ltd v McInerney; McInerney v Nu-Stone Building Pty Ltd (No 2) [2024] NSWCATAP 87 Hearing dates: 20 October 2023 Date of orders: 20 May 2024 Decision date: 20 May 2024 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President D Robertson, Senior Member Decision: (1) The time for filing the notice of appeal in matter number 2022/00053249 is extended to 23 February 2022. (2) Leave to appeal is granted in both appeals. (3) The appeals are upheld. (4) Order 1 made by the Tribunal in proceedings HB 20/36393 on 19 January 2022 is set aside and in lieu thereof order that Nu-Stone Building Pty Ltd (the builder) is to pay $22,616.37 to Garry and Gladys McInerney (the homeowners) immediately. (5) Order 2 made by the Tribunal in proceedings HB 20/15757 on 19 January 2022 is affirmed. (6) In the event that the builder applies for a different costs order to Order 3 made by the Tribunal in proceedings HB 20/36393 and HB 20/15757 on 19 January 2022, in accordance with Order (7) below, Order 3 made on 19 January 2022 shall cease to have effect. (7) The builder may file, and serve upon the homeowners, submissions of no more than five pages, and evidence in support, seeking a different costs order to Order 3 made by the Tribunal in proceedings HB 20/36393 and HB 20/15757 on 19 January 2022 within 14 days of the publication of these orders. (8) If the builder files and serves submissions pursuant to Order (7) above, the homeowners may file, and serve upon the builder, submissions, and evidence in support, in response to the builder's submissions within a further 14 days. (9) The builder may file submissions in reply of no more than three pages within a further 7 days. (10) If either party seeks an order in relation to the costs of the appeals, or either of the appeals, (including costs incurred in relation to the appeal hearing on 24 May 2022) they may file, and serve upon the other party, submissions of no more than five pages, with any evidence in support, within 14 days of the publication of these orders. (11) If a party files and serves submissions pursuant to Order (10) above, the other party may file and serve submissions in response of no more than five pages, with any evidence in support, within a further 14 days. (12) Submissions in reply to submissions filed and served pursuant to Order (11) above, of no more than three pages, may be filed and served within a further 7 days. (13) Any submissions filed pursuant to Orders (7), (8), (10) or (11) above must include submissions concerning whether an order should be made pursuant to s 50 of the Civil and Administrative Tribunal Act 2013 (NSW) dispensing with a hearing of the relevant application. (14) If any submissions are filed pursuant to Orders (7) to (12) above, the parties are to prepare and provide to the Appeal Panel three copies of an indexed, tabbed and paginated bundle containing all submissions and evidence filed pursuant to those orders within 42 days of the publication of these orders. Catchwords: BUILDING AND CONSTRUCTION — contract — calculation of damages for repudiation by builder Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: Barber v Oracle (NSW) Pty Ltd [2019] NSWSC 1370 Cessnock City Council v 123 259 932 Pty Ltd [2024] HCA 17 Collins v Urban [2014] NSWCATAP 17 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 House v The King (1936) 55 CLR 499 Kork v Merheb [2021] NSWCATAP 349 New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 Nu-Stone Building Pty Ltd v McInerney [2022] NSWCATAP 285 Nu-Stone Building Pty Ltd v McInerney [2023] NSWSC 940 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Robinson v Harman (1848) 1 Exch 850; 154 ER 363 White v Overland [2001] FCA 1333 Category: Principal judgment Parties: Proceedings 2022/00037784 Nu-Stone Building Pty Ltd (Appellant) Garry McInerney (First Respondent) Gladys McInerney (Second Respondent)