Orell v Clas Concrete & Constructions Pty Ltd [2024] NSWCATAP 220

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Orell v Clas Concrete & Constructions Pty Ltd [2024] NSWCATAP 220 Hearing dates: 21 October 2024 Date of orders: 05 November 2024 Decision date: 05 November 2024 Jurisdiction: Appeal Panel Before: G Blake AM SC, Principal Member E Bishop SC, Senior Member Decision: (1) Leave to appeal is granted. (2) The appeal is allowed. (3) Order 1 made on 24 July 2024 is set aside. (4) The following questions are to be considered by the Consumer and Commercial Division of the Tribunal as originally or differently constituted as determined by the Deputy President of that Division on the basis of such further evidence as the parties may adduce: (a) whether the respondent entered into the building contract in contravention of s 4 of the Home Building Act 1989 (NSW), and if so whether or not it is entitled to damages or to enforce any other remedy in respect of a breach of the building contract committed by the appellant, and the building contract is unenforceable by it pursuant to s 10(1)(a) of the Home Building Act 1989 (NSW); (b) whether the respondent carried out work under the building contract in contravention of s 92 of the Home Building Act 1989 (NSW), and if so whether or not it is entitled to damages or to enforce any other remedy in respect of a breach of the building contract committed by the appellant in respect of that work pursuant to s 94(1) of the Home Building Act 1989 (NSW); (c) whether a concrete pathway around the perimeter of the slab was necessary to remediate defective work carried out by the respondent, and if so what is the reasonable cost of the concrete pathway and whether the appellant is entitled to recover the reasonable cost as damages from the respondent; (d) whether the respondent has a right under s 48O(1)(a) and (2) of the Home Building Act 1989 (NSW) to recover money in respect of the work carried out on a quantum meruit basis in proceedings 2023/00395951, and if so the amount recoverable from the appellant; (e) whether any, and if so, what amount is payable by one party to the other party. (5) The security amount paid by the appellant to the respondent's solicitors is to be released immediately. (6) The respondent is to pay the costs of the appeal of the appellant as agreed or assessed in accordance with the Legal Profession Uniform Law Application Act 2014 (NSW). (7) If any party wishes to make an application for a different costs order, the applicant (the costs applicant) is to lodge and serve a costs application, including submissions limited to three pages and any evidence in support, on or before 14 days from the date of this decision, whereupon order (6) is to be set aside. (8) The respondent to the costs application is to lodge and serve any submissions limited to three pages and any evidence in reply on or before 28 days from the date of this decision. (9) The costs applicant is to lodge and serve any submissions limited to two pages in reply on or before 35 days from the date of this decision. (10) The parties are to indicate in their submissions whether they consent to an order dispensing with an oral hearing of the costs application, and if they do not consent, submissions of no more than one page as to why an oral hearing should be conducted rather than the application being determined on the papers. If a hearing is not dispensed with, the parties will be advised of a date for the hearing of the application. Catchwords: APPEALS — Appeal on question of law – Scope of question of law APPEALS — Constructive failure to exercise jurisdiction by not addressing a material issue or by overlooking material evidence APPEALS — Leave to appeal — Principles governing – leave to appeal granted APPEALS — Procedural fairness — Failure to give reasons — Adequacy of reasons BUILDING AND CONSTRUCTION – Residential building work – Statutory warranties under Home Building Act 1989 (NSW) – Claims by owner against builder Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 62, 80, 81, Sch 4, cl 12, Sch 6, cl 11 Civil and Administrative Tribunal Rules 2014 (NSW), r 38A Home Building Act 1989 (NSW), ss 4, 10, 48O, 92, 94 Legal Profession Uniform Law Application Act 2014 (NSW) Cases Cited: Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165 Allen v TriCare (Hastings) Ltd [2017] NSWCATAP 25 Collins v Urban [2014] NSWCATAP 17 Flightdeck Geelong Pty Ltd v All Options Pty Ltd (2020) 280 FCR 479; [2020] FCAFC 138 Jeray v Blue Mountains City Council [2024] NSWCATAP 66 Maclean v Brylewski [2023] NSWCA 173 New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 Wollondilly Shire Council v Styles [2024] NSWCATAP 104 Yuen v Thom [2016] NSWCATAP 243 Texts Cited: NCAT Policy 2, Publishing Reasons for Decisions Category: Principal judgment Parties: Fernando Orell (Appellant) Clas Concrete & Constructions Pty Ltd (Respondent) Representation: Counsel: M Fraser (Appellant)