Alan Hayes v Paul McDermott [2014] NSWCATCD 141

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Alan Hayes v Paul McDermott [2014] NSWCATCD 141 Decision date: 25 July 2014 Before: J A Ringrose, General Member Decision: The respondent is to pay the applicant the sum of $7,963.00 within 30 days of the date of this Order. Legislation Cited: Home Building Act 1989 s 18B Cases Cited: Bellgrove v Eldridge (1954) 90CLR 13 Hyder Consulting (Australia) Pty Limited v Walh Wilhlemson Agency Pty Limited (2001) NSWCA 313 Category: Principal judgment Parties: Alan Hayes (applicant) Paul McDermott (respondent) Representation: - - File Number(s): HB 13/35145 Publication restriction: Nil

reasons for decision

APPLICATION 1On 26 October 2012 the respondent herein filed a statement of claim in the Local Court at Wyong seeking payment of a sum of $7,000.00 which he claimed to be the balance of monies owing under a contract for building works. 2On 15 January 2013 the applicant herein filed a defence to the builders claim and on 30 January 2013 he filed a cross-claim in the Local Court at Wyong alleging a breach of s 18B warranty under the Home Building Act and claiming a sum of $14,150.00 for remedial work together with a sum of $63,000.00 for demolition and reconstruction of the works. 3On 4 April 2013 the Local Court made directions for filing of evidence and pleadings and on 13 June 2013 the Court of its own motion transferred these proceedings, together with the related builders claim to the Tribunal. 4The matter came before Senior Member Meadows on 14 August 2013 when Directions were made requiring the applicant to file all his evidence by 4 September 2013 and the respondent to file all his evidence by 25 September 2013. Leave was granted to the applicant to be legally represented and it was noted the parties were required to serve the evidence upon which they wished to rely in accordance with the timetable and evidence not served as directed may not be admitted at a Hearing. 5On 23 October 2013 the matter was listed for Directions before Senior Member Goldstein where there was no appearance of the respondent builder and directions were made for the parties to attend at a conclave. The conclave took place on 21 January 2014 at 785 Dicksons Road, Dooralong and it was attended by experts on behalf of the applicant and the respondent along with Tribunal Member Ilett. Although some issues arose in relation to the Scott Schedule which was considered by the parties, it is noted that both of the experts signed off on the Scott Schedule and a report from Member Ilett noted that some 15 items were considered together with the question of builder's margin and GST. 6The matter was then listed for further directions before Senior Member Thode on 12 March 2014 where directions were made that the builder (respondent) file witness statements by 19 March 2014 and the owner (applicant) file witness statements by 26 March 2014. An application for leave to file further expert evidence was refused. The matter was then listed for Hearing on 20 June 2014 at Gosford.