Mohammed Affan v Fabiani Constructions Pty Ltd Fabiani Constructions Pty Ltd v Mohammed Affan [2014] NSWCATCD 192

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Mohammed Affan v Fabiani Constructions Pty Ltd Fabiani Constructions Pty Ltd v Mohammed Affan [2014] NSWCATCD 192 Hearing dates: 31 March 2014 and 2 June 2014 Decision date: 02 October 2014 Before: D Charles, General Member Decision: In application HB 13/37204, the Tribunal determines that an amount of $1,826.00 is payable by the home owner, Mohammed Affan, to the builder, Fabiani Constructions Pty Ltd on a quantum meruit basis for residential building work on disputed variations. In application HB 13/16888 the Tribunal determines that the respondent, Fabiani Constructions Pty Ltd is liable to the applicant, Mohammed Affan in an amount of $2,331.40 being rectification costs for defective or incomplete residential building work. By reason of an equitable set off of the parties' competing claims in HB 13/16888 and HB13/37204, Fabiani Constructions Pty Ltd is to pay the Mohammed Affan the sum of $505.40 within 28 days of the date of these orders. There is to be no order as to costs with the intent that the parties bear their own costs of both applications. Catchwords: Breach of Contract Whether the builder entitled to balance of contract sum or any amount on a quantum meruit Whether the home owner entitled to damages to rectify defective and incomplete work, in circumstances where there has been no formal termination of contract Quantum of damages Equitable set-off of competing claims Legislation Cited: Home Building Act 1989 Home Building Regulation 2004 Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Cases Cited: Xu v Jihong Design & Constructions Pty Ltd [2011] NSWCA 277 Brewarrina Shire Council v Beckhaus Civil Pty Ltd [2005] NSWCA 248 Ryder v Frohlich [2004] NSWCA 472 Pavey & Matthews v Paul (1987) 162 CLR 221 Lumbers v W Cook Builders Pty Ltd (2008) 232 CLR 635 AWA Ltd v Exicom Australia Pty Ltd (1990) 19NSWLR 705 Texts Cited: None Category: Principal judgment Parties: Mohammed Affan (home owner; applicant in HB 13/16888, respondent in HB 13/37204) Fabiani Constructions Pty Ltd (builder; applicant in HB 13/37204, respondent in HB 13/16888) File Number(s): HB 13/16888 and HB 13/37204 Publication restriction: Unrestricted