The Owners-Strata Plan No 93227 v In Style Developments Pty Ltd [2023] NSWCATCD 154

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: The Owners-Strata Plan No 93227 v In Style Developments Pty Ltd [2023] NSWCATCD 154 Hearing dates: 9 February 2022; written submissions to 28 April 2022 Date of orders: 30 January 2023 Decision date: 30 January 2023 Jurisdiction: Consumer and Commercial Division Before: G Sarginson, Senior Member Decision: (1) The first respondent (In-Style Developments Pty Ltd) and the second respondent (Arden CH (NSW) Pty Ltd are to perform, or cause the performance of, the works set out in the scope of works in Items 1 to 148 of the Scott Schedule contained at Tab 14 of the Tender Bundle filed in these proceedings by 30 July 2023. (2) The second respondent is to perform, or cause the performance of, the works set out in the scope of works in Items 149 to 172 of the Scott Schedule contained at Tab 14 of the Tender Bundle filed in these proceedings by 30 July 2023. (3) The second respondent is to perform, or cause the performance of, the works set out in the scope of works in Items 174 to 215 (other than Item 179) of the Scott Schedule contained at Tab 14of the Tender Bundle filed in these proceedings by 30 July 2023. (4) The second respondent is to perform, or cause the performance of, the works set out in the scope of works in paragraph 9 of the Draft Building Work Rectification Order of Mr Whitton of NSW Fair Trading under s 33 of the Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020 (NSW) contained at Tab 20 of the Tender Bundle filed in these proceedings by 30 July 2023. (5) The application for work orders under Section 48O of the Home Building Act 1989 (NSW) is otherwise dismissed. (6) The work in Orders 1, 2, 3 and 4 is to be performed by suitably licensed and insured persons exercising due care and skill. (7) The issue of costs of these proceedings is to be determined in the following manner: (a) The costs applicant is to file with the Tribunal and serve on the costs respondent all written submissions and documents relied upon in the costs application by 14 days from the date of this decision. (b) The cost respondent is to file with the Tribunal and serve on the costs applicant all written submissions and documents relied upon by the costs respondent within 28 days from the date of this decision. (c) The costs applicant is to file with the Tribunal and serve on the costs respondent all submissions in reply by 35 days from the date of this decision. (d) The costs submissions of the parties are to include whether a party seeks an oral hearing on the issue of costs or consents to the issue of costs being determined on the papers. (e) Subject to the submissions of the parties and consideration of those submissions, the Tribunal may determine the issue of costs without further oral hearing under s 50 (2) of the Civil and Administrative Tribunal Act 2013 (NSW). (f) Any party may apply to vary the timetable for costs submissions. (g) All costs submissions and documents must be filed with the Tribunal in hard copy. Catchwords: BUILDING AND CONSTRUCTION -Strata Scheme - Building defects - Jurisdiction of Tribunal to make work orders to a value of work greater than $500,000 - Settlement agreement between owners corporation and developer -Whether settlement agreement breached - Separate contract with builder to remediate work of original builder - Liability of developer and remedial builder - Whether work defective - Whether work involved major defects - Scope of appropriate remedial orders Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Regulation 2022 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Home Building Act 1989 (NSW) Home Building Legislation Amendment Act 2001 (NSW) Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020 (NSW) Cases Cited: Aiton v Transfield [1999] NSWSC 996 BCI Finances Pty Ltd (In Liq) v Binetter (No 4) [2016] FCA 1351; (2016) 348 ALR 227 Bellgrove v Eldridge [1954] HCA 36; (1954) 90 CLR 613 Blatch v Archer (1774) 1 Cowp 63; (1774) 98 ER 969 at 970 Bouffard v CDM Australasia Pty Ltd [2021] NSWDC 124 Catapult Constructions Pty Ltd v Denison [2018] NSWCATAP 158 Cherry v Steele-Park [2017] NSWCA 295 Deacon v National Strategic Constructions Pty Ltd; National Strategic Constructions Pty Ltd v Deacon [2017] NSWCATAP 185 El-Mir & 1 Or v Risk [2005] NSWCA 215 Ericon Building Pty Limited v The Owners-Strata Plan No 96597 [2020] NSWCATAP 265 Fisher v N. Phillips and M. Phillips t/as Arise Building Services [2022] NSWCATCD 80 Gerard Cassegrain & Co Pty Ltd v Cassegrain (2013) 87 NSWLR 284; [2013] NSWSC 453 Glenquarry Park Investments Pty Ltd v Hegyesi [2019] NSWSC 425 Harrison v Melham [2008] NSWCA 67; (2008) 72 NSWLR 380 Jagatramka v Wollongong Coal Ltd [2021] NSWCA 61 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 New South Wales Bar Association v Stevens [2003] NSWCA 95 Owners of "Shin Kobe Maru" v Empire Shipping Company Inc [1994] HCA 54; (1994) 181 CLR 404 Owners SP 92648 v Binah Constructions Pty Ltd and Anor [2021] NSWCATAP 68 Penrith Whitewater Stadium Ltd v Lesvos Pty Ltd [2007] NSWCA 103 Project Blues Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Re Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514 Stevenson v Ashton [2019] NSWSC 1689 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 Warburton v County Construction (NSW) Pty Ltd [2022] NSWSC 941 Texts Cited: None cited. Category: Principal judgment Parties: The Owners-Strata Plan No 93227 (Applicant) In-Style Developments Pty Ltd (First Respondent) Arden CH (NSW) Pty Ltd (Second Respondent) Representation: C Blackwell, Solicitor (Applicant) S Puttick, Counsel (First Respondent) A Thurlow, General Manager (Second Respondent)