Innovative Builders and Engineers Pty Ltd v Shah [2024] NSWCATAP 253

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Innovative Builders and Engineers Pty Ltd v Shah [2024] NSWCATAP 253 Hearing dates: 30 September 2024 Date of orders: 06 December 2024 Decision date: 06 December 2024 Jurisdiction: Appeal Panel Before: P Molony, Senior Member D Fairlie, Senior Member Decision: (1) Appeal allowed. (2) The orders made by the Tribunal on 11 June 2024 and 12 September 2024 are set aside. (3) The application is to be reheard before a differently constituted Tribunal with new evidence allowed. (4) The costs of the appealed proceedings are costs in the cause on rehearing. (5) The respondent homeowners are to pay the appellants' costs of the appeal as agreed or assessed. (6) If any party contends that there should be a different order to those in orders (4) and (5) above then: (a) They shall file an application for miscellaneous orders specifying the order(s) they seek within 15 working days of the publication of these reasons together with: (i) Details of the costs they seek (specifying amounts); and, (ii) Submissions (not exceeding 5 pages) in support of their application. (b) The other party(ies) shall file submissions in reply (not exceeding 5 pages) within a further 10 working days. (c) Any submission in reply from the party(ies) seeking costs (not exceeding 2 pages) shall be filed within a further 5 working days. (d) All submission should also address: (i) Whether the Appeal Panel can dispense with a hearing and deal with the issues relating to costs on the papers by relying on the materials provided; and (ii) Whether, if the Appeal Panel makes an order for costs, it should fix the costs by ordering a specific amount. Catchwords: APPEAL – error of law – adequacy of reasons – no legal basis disclosed for order making director of building company personally liable for breach of contract - failure to determine scope of work under residential building contract before determining damages – appeal allowed – remitted for rehearing. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 36, 38, 60, 80, Sch 4, c12 Civil and Administrative Tribunal Rules 2014 (NSW), r 25 Home Building Act 1989 (NSW), ss 7, 10 Cases Cited: Al-Daouk v Mr Pine Pty Ltd t/as Furnco Bankstown [2015] NSWCATAP 111 Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165 BHP Billiton Ltd v Dunning [2013] NSWCA 421 Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 CEO of Customs v AMI Toyota Ltd (2000) 102 FCR 578; [2000] FCA 1343 Chapman v Nicolosi (No 2) [2023] NSWCATAP 73 Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 Craig v South Australia (1995) 184 CLR 163, [1995] HCA 58 Dyjecinska v Step-Up Renovations (NSW) Pty Ltd [2024] NSWSC 159 Ferella & Anor v Chief Commissioner of State Revenue [2014] NSWCA 378 FVA v Commissioner for Police, NSW Police Force [2024] NSWCATAP 127 Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 23 Kudrynski v Orange City Council [2024] NSWCA 33 Meacham v Commissioner of Police [2020] NSWCATAP 107 Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 Orr v Cobar Management Pty Limited (2020) 103 NSWLR 36; [2020] NSWCCA 220 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Robinson v Herman (1848) 1 Ex 850; 115 RE 363 SAB v SEM [2013] NSWSC 253 Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 Smith v NSW Bar Association (1992) 176 CLR 256, [1992] HCA Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 Texts Cited: None cited Category: Principal judgment Parties: Innovative Builders and Engineers Pty Ltd (First Appellant) Mohd Ertaz Ul Chowdhury (Second Appellant) Mahmudul Shah (First Respondent) Syeda Begum (Second Respondent) Representation: M Chowdhury (First Appellant) Second Appellant (Self-Represented) First Respondent (Self-Represented) M Shah (Second Respondent) File Number(s): 2024/00244876 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not published Date of Decision: 18 June 2024 Before: R C Titterton OAM, Senior Member File Number(s): 2023/00397159