Houston v Phillips trading as Arise Building Services [2024] NSWCATAP 213

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Houston v Phillips trading as Arise Building Services [2024] NSWCATAP 213 Hearing dates: 17 September 2024 Date of orders: 30 October 2024 Decision date: 30 October 2024 Jurisdiction: Appeal Panel Before: M Deane, Senior Member G Burton SC, Senior Member Decision: (1) The appeal is allowed. (2) The decision under appeal is set aside. (3) In application 2022/00449356, the following orders are substituted for those of the Tribunal: a. The Owner Louise Houston is to pay the Builder NL Phillips & MR Phillips trading as Arise Building Services $32,289.15 within 14 days after the date of final orders in the remitter of these proceedings and 2022/43874 or the later of those proceedings if the remitter of each is not heard together. (4) The proceedings in application 2022/00449356 are remitted to the Consumer and Commercial Division of the Tribunal for determination in accordance with law (with leave given to the parties to adduce such further evidence as the Tribunal thinks fit) on the following issues only: a. whether the amount payable in order 3(a) should be reduced (and if so the quantum of any such reduction) by items number 1, 3 and 7 in the Conclave Joint Report and Scott Schedule dated 5 September 2022; and b. costs. (5) In application 2022/00438274, the following orders are substituted for those of the Tribunal: a. The Builder NL Phillips & MR Phillips trading as Arise Building Services must deliver the blackbutt flooring referenced in invoice number INV-0231 to the Owner's property at the Owner's expense within 14 days of the date of these orders. (6) The proceedings in application 2022/00438274 are remitted to the Consumer and Commercial Division of the Tribunal for determination in accordance with law (with leave given to the parties to adduce such further evidence as the Tribunal thinks fit) on the following issues only: a. whether the applicant owner overpaid the respondent builder by $60,739.93; and b. costs. (7) If any party seeks costs in the appeal, the following orders and directions will apply: a. Any party contending for a costs order in the appeal proceedings (costs applicant) is to file and serve a short written submission (no more than 5 A4 size pages) within 14 days of the date of these orders, b. The other party (the costs respondent) is to file and serve a short written submission (no more than 5 A4 size pages) in response to the costs applicant's submission, within 28 days of the date of these orders, c. The costs applicant may file and serve any written submissions strictly in reply to the costs respondent's submissions (no more than 2 A4 size pages) within 35 days of the date of these orders, d. Subject to the parties' submissions on this point, the Appeal Panel proposes to determine any application for a different costs order in the appeal proceedings without a hearing, pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 NSW, based on the written submissions provided in accordance with the directions as set out above. Catchwords: APPEAL – Errors on questions of law – no evidence to support finding -– wrong principle of law – failure to give reasons – denial of procedural fairness Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Home Building Act 1989 (NSW) Cases Cited: Barwick v Shetab [2017] NSWCATAP 127 Bellgrove v Eldridge [1954] 90 CLR 613 Bittania Pty Ltd v Parkline Constructions Pty Ltd [2009] NSWSC 1302 Cohen v Zanzoul trading as Uniq Building Group [2020] NSWSC 592 Commonwealth v Amann Pty Ltd (1991) 174 CLR 64 Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 Day v SAS Trustee Corporation [2021] NSWCA 71 New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497; [2022] HCA 17 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Tabcorp Holdings Ltd v Bowen Investments PL (2009) 236 CLR 272, [2009] HCA 8 Walker Group Constructions PL v Tzaneros Investments PL [2017] NSWCA 27 Texts Cited: nil Category: Principal judgment Parties: Louise Houston (Appellant) NL Phillips & MR Phillips trading as Arise Building Services (Respondent) Representation: Counsel: Mr M Klooster (Appellant) Mr M Luitingh (Respondent) Solicitors: Mitchell & Shorten Lawyers (Appellant) Jane Button & Associates Pty Ltd (Respondent) File Number(s): 2024/00235273 Publication restriction: nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 12 June 2024 Before: P Boyce, Senior Member File Number(s): 2022/00449356 and 2022/00438274