Beverley Dawn Brooker and Mervyn Graeme Brooker v P J & J A Worth Pty Ltd [2014] NSWCATCD 114

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Beverley Dawn Brooker and Mervyn Graeme Brooker v P J & J A Worth Pty Ltd [2014] NSWCATCD 114 Hearing dates: 26 May 2014 Decision date: 01 July 2014 Before: P Hunter, General Member Decision: 1 P J & J A Worth are to pay Beverley Dawn Brooker and Mervyn Graeme Brooker the sum of $6,216.27, on or before 14 July 2014. 2 Each party is to pay their own costs. Catchwords: Residential building work, renewal application Legislation Cited: Home Building Act 1989 Consumer, Trader and Tenancy Tribunal Act 2000 Cases Cited: Zaky v Versatile Ceramics (General) Beck v Blindmaster Pty Ltd [2005] NSWCTTT 107, Building Restorations Pty Ltd v Nichol [2006] NSWCTTT 423 Category: Principal judgment Parties: Beverley Dawn Brooker and Mervyn Graeme Brooker (applicants) and P J & J A Worth Pty Ltd (respondent) File Number(s): HB 14/02538

reasons for decision 1This application is an application for renewal, filed by the applicants on 14 January 2014, seeking an order for compensation due to non-compliance with previous consent orders of the Tribunal in matter HB 13/10504. In their application for renewal, the applicants sought an order for the payment of $22,092.90. 2The consent orders agreed by the parties in matter HB 13/10504, dated 21 June 2013, were in the following terms; "1. By consent, the Tribunal orders that the respondent is to carry out the following work on or before 30 September 2013 in a proper and workmanlike manner, and if not the applicant may renew the proceedings at any time before 30 January 2014. Details of work order: (i) Rectify Duragal by preparing and painting to 100mm and installing capping to all piers as per manufacturers recommendation. (ii) Repair crack in side of house, right hand side, north elevation (in fibre cement wall cladding). (iii) Repair window seals to fix cracks in sealant and cracks around window frames where needed. (iv) Install a handrail on external stairs. (v) Investigate and repair the deck to eliminate pooling and lack of fall and leaking to the area below. The home owner may provide a different tile at their own cost. If they cannot agree on rectification, the matter will be renewed. The builder will pay for tiles up to the original cost. 3. By consent, if the above order is not complied with, the applicant may, at any time before 30 January 2014, renew the proceedings. 4. By consent, the applicant is not presently pursuing the contractual claim of $2,000 for scaffolding hire, but reserves the right to include it as part of any renewal." Section 43 of the Consumer, Trader and Tenancy Tribunal Act 2001 (the Act) provides; 43 Enforcement of certain Tribunal orders (1)If the Tribunal makes an order in relation to any proceedings, the Tribunal may, when the order is made or later, give leave to the person in whose favour the order is made to renew the proceedings if the order is not complied with within the period specified by the Tribunal. (2)If an order has not been complied with within the period specified by the Tribunal, the person in whose favour the order was made may renew the proceedings to which the order relates by lodging a notice with the Tribunal stating that the order has not been complied with. (3) The provisions of this Act apply to a notice lodged in accordance with subsection (2) as if the notice were an application made in accordance with section 24. (4) When proceedings have been renewed in accordance with this section, the Tribunal: (a) may make any other appropriate order under this Act as it could have made when the matter was originally determined, or (b) may refuse to make such an order. (5) This section does not apply if the operation of an order has been suspended. (6) A notice under this section must be in the form prescribed by the regulations. 3This application is made pursuant to subsection 43(2) the Act. The application has been made within the time permitted in order 2 of the consent orders dated 21 June 2013. In the application for renewal the applicants have claimed that the work undertaken was defective and that the respondent had not completed the work in accordance with the Tribunal orders. 4With documents filed pursuant to procedural directions, on 24 April 2014, the applicants also sought to introduce claims for compensation which were not part of the consent orders, but which they claimed were part of the original application. Without leave of the Tribunal, or the consent of the respondent, they sought to amend their claim to seek compensation for a further 8 items, bringing their claim to a total sum of $38,436.04.