Champion Home Sales Pty Ltd v Voulgaris [2024] NSWCATAP 244

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Champion Home Sales Pty Ltd v Voulgaris [2024] NSWCATAP 244 Hearing dates: 4 November 2024 Date of orders: 29 November 2024 Decision date: 29 November 2024 Jurisdiction: Appeal Panel Before: D G Charles, Senior Member P H Molony, Senior Member Decision: (1) The appeals of Champion Home Sales Pty Ltd from the orders of the Tribunal for case no HB 2023/00382187 in the Substantive Decision made on 29 July 2024 and the Costs Decision made on 18 September 2024, are dismissed. (2) Champion Home Sales Pty Ltd is to pay the respondent's costs of the appeals on the ordinary basis, as agreed or assessed. (3) The following orders apply if a party contends for a different costs order in relation to the appeal proceedings: (a) Order 2 above ceases to have effect if an application for a different costs order is made in the appeal proceedings. (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. (4) 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 based on the written submissions and evidence provided, pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 NSW. Catchwords: HOME BUILDING - enforceability of a builder's damages clause where the builder had terminated a contract for lack of finance by owner – no certificate of insurance issued to the owner - whether the builder's claim is for the payment of damages under a contract for residential building work – application of s 92 and s 94 of the Home Building Act – whether work of a preparatory nature is residential building work. COSTS – Calderbank letter – exercise of discretion for indemnity costs. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 Home Building Act 1989 (NSW) Cases Cited: Mann v Paterson Constructions Pty Ltd [2019] HCA 32; (2019) 267 CLR 560 Syed Ahmad Shoaib Au Pty Ltd v Jandson Pty Ltd; Jandson Pty Ltd v Syed Ahmad Shoaib Au Pty Ltd [2018] NSWCATAP 228 Grygiel v Bayne [2005] NSWCA 218 Lawrence v Ciantar [2020] NSWCA 89 Champion Homes Sales Pty Ltd v Biggs [2023] NSWCATCD 117 Unique Commercial Group Pty Ltd v Cusamano [2024] NSWCATAP 204 Wollondilly Shire Council v Styles [2024] NSWCATAP 104 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 Lawrence v Ciantar; Ciantar v Lawrence (2019) NSWSC 464 Calderbank v Calderbank (1975) 2 All ER 333 Miwa v Siantan Properties Pty Ltd (No 2) [2011] NSWCA 344 Jones v Bradley (No 2) [2003] NSWCA 258 Old v McInnes and Hodgkinson [2011] NSWCA 410 Rickard Constructions v Rickard Hails Moretti [2005] NSWSC 481 Kursun v Gareffa (No 2) [2017] NSWCATCD 23 Texts Cited: None cited Category: Principal judgment Parties: Champion Homes Sales Pty Ltd (Appellant) Evonne Voulgaris (Respondent) Representation: Counsel: C Stomo (Appellant) M Bennett (Respondent)