Hiperia Holdings Pty Limited v Sghabi;; Sghabi v Hiperia Holdings Pty Limited [2024] NSWCATAP 105

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Hiperia Holdings Pty Limited v Sghabi;; Sghabi v Hiperia Holdings Pty Limited [2024] NSWCATAP 105 Hearing dates: 4 December 2023 Date of orders: 11 June 2024 Decision date: 11 June 2024 Jurisdiction: Appeal Panel Before: K Rosser, Principal Member D Charles, Senior Member Decision: (1) The appeal of Christopher Sghabi in case no AP 2023/00289993 is allowed and the appeal of Hiperia Holdings Pty Ltd in case no AP 2023/00289266 is allowed in part. (2) Order 1 made in the Tribunal proceedings case no HB 22/16431 (2022/00431878) on 14 August 2023, is set aside. (3) In substitution for order 1, the following order is made: Hiperia Holdings Pty Ltd ACN 086 675 676 (builder) is to pay Christopher Charbel Sghabi (owner) the sum of $35,514.45 within 14 days of the date of these orders. (4) The owner is to pay the builder's costs of the builder's appeal proceedings (case no AP 2023/00289266), on the ordinary basis, as agreed or assessed. (5) In the owner's appeal proceedings (case no AP 2023/00289993), no order as to costs (with the intent that the parties are to pay their own costs of the proceedings). (6) The following orders apply if a party contends for a different costs order in relation to the appeal proceedings: (a) Order 4 above ceases to have effect if a different costs order is contended for in the builder's appeal proceedings (case no AP 2023/00289266), and Order 5 above ceases to have effect if a different costs order is contended for in the owner's appeal proceedings (case no AP 2023/00289993). (b) The party contending for a different costs order (the costs applicant) is to file and serve the application for costs, supported by evidence and submissions, within 14 days of the date of these orders. (c) The other party (the costs respondent) is to file and serve any evidence and submissions in response to the costs application within 28 days of the date of these orders. (d) The costs applicant is to file and serve any material in reply within 35 days of the date of these orders. (7) If the builder presses the appeal in relation to the Tribunal's costs order in case no HB 22/16431 (2022/00431878), the following orders apply: (a) The builder is to file and serve evidence and submissions in support of the appeal against the Tribunal's costs order within 14 days of the date of these orders. (b) The owner is to file and serve evidence and submissions in response to the appeal against the Tribunal's costs order within 28 days of the date of these orders. (c) The builder is to file and serve any material in reply within 35 days of the date of these orders. (8) Subject to the parties' submissions on this point, the Tribunal proposes to determine any application for a different costs order and/or the appeal against the Tribunal's costs order without a hearing based on the written submissions provided. Catchwords: HOME BUILDING – successor in title engaged contractor to complete residential building work of another builder – no liability for contractor where no inference drawn on available evidence that contractor had installed defective windows – no breach of statutory warranty where consequential loss arising from water penetration not caused by contractor's work – contingency provision allowable in building defects claim. APPEAL –Error on a question of law in relation to some findings of defective work – inadequacy of reasons – substituted findings of Appeal Panel. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 Home Building Act 1989 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Seltsam Pty Limited v McGuiness; James Hardie & Coy Pty Limited v McGuiness 49 NSWLR 262; [2000] NSWCA 29 The Owners – Strata Plan No 87265 v Saaib; The Owners – Strata Plan No 87265 v Alexandrova Volkswagen Group Australia Pty Ltd v Saad [2022] NSWCATAP 133 Texts Cited: N/A Category: Principal judgment Parties: 2023/00289266 Hiperia Holdings Pty Limited – (Appellant) Christopher Sghabi (Respondent)