Johns v Morris t/as Andrew Morris Constructions [2014] NSWCATCD 33

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Johns v Morris t/as Andrew Morris Constructions [2014] NSWCATCD 33 Decision date: 02 April 2014 Jurisdiction: Consumer and Commercial Division Before: D Goldstein, Senior Member Decision: The respondent must pay the applicants the sum of $25,276.95 immediately Legislation Cited: Home Building Act 1989 Consumer, Trader and Tenancy Act 2001 Cases Cited: Unity Insurance Brokers Pty Limited v Rocco Pezzano Pty Limited 192 CLR Biggin & Co Ltd v Permanite Ltd [1951] 2 K.B. 314 Category: Principal judgment Parties: Christopher Johns and Kerri Lynn Johns (applicants) Andrew Morris (respondent) Representation: The parties were self-represented File Number(s): HB 12/56058 Publication restriction: Unrestricted

REASONS FOR DECISION 1This is an application in which the applicants seek the payment of the sum of $30,108.35, inclusive of legal fees, from the respondent in connection with building work carried out by the respondent at the applicants' residence situate at 6 Arrawarra Road, Arrawarra Hedland (the "property"). 2At the commencement of the hearing the applicant stated that at all material times, he and his wife were the registered owners of the property. The respondent consented to the application being amended to name Kerri Lynn Johns as an applicant. 3In these reasons I will refer to the applicants as the owners and to the respondent as the builder. 4The owners claim is in relation to defective work allegedly carried out by the builder. 5The parties were self-represented at the hearing.

JURISDICTION 6Section 48K (1) of the Home Building Act 1989 (the "Act") provides that: (1) The Tribunal has jurisdiction to hear and determine any building claim brought before it in accordance with this Part in which the amount claimed does not exceed $500,000 (or any other higher or lower figure prescribed by the regulations). 7A "building claim" is defined in section 48A of the Act as follows: building claim means a claim for: (a) the payment of a specified sum of money, or (b) the supply of specified services, or (c) relief from payment of a specified sum of money, or (d) the delivery, return or replacement of specified goods or goods of a specified description, or (e) a combination of two or more of the remedies referred to in paragraphs (a)-(d), that arises from a supply of building goods or services whether under a contract or not, or that arises under a contract that is collateral to a contract for the supply of building goods or services, but does not include a claim that the regulations declare not to be a building claim. 8Further, in connection with the meaning of the expression "building claim", section 48A(2) of the Act states that: a building claim includes the following: (a) an appeal against a decision of an insurer under a contract of insurance required to be entered into under this Act, (b) a claim for compensation for loss arising from a breach of a statutory warranty implied under Part 2C. 9Building goods or services are defined in section 48A of the Act to mean: goods or services supplied for or in connection with the carrying out of residential building work or specialist work, being goods or services: (a) supplied by the person who contracts to do, or otherwise does, that work, or (b) supplied in any circumstances prescribed by the regulations to the person who contracts to do that work. 10Finally, residential building work is defined by the Act in section 3 to mean: any work involved in, or involved in co-ordinating or supervising any work involved in: (a) the construction of a dwelling, or (b) the making of alterations or additions to a dwelling, or (c) the repairing, renovation, decoration or protective treatment of a dwelling. 11The owners' claim falls within the jurisdictional limit of the Tribunal. It is a building claim as defined by the Act as it seeks payment of money from the builder. The claim arises out of the supply of services by the builder in connection with residential building work.