Mandi Randell and Fred Randell v Brett Anthony Love and Jackson Hemi Love both trading as “New Love Attics and Roof Conversions” [2014] NSWCATCD 250

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Mandi Randell and Fred Randell v Brett Anthony Love and Jackson Hemi Love both trading as "New Love Attics and Roof Conversions" [2014] NSWCATCD 250 Hearing dates: 9 October 2014 Date of orders: 15 October 2014 Decision date: 15 October 2014 Jurisdiction: Consumer and Commercial Division Before: Jeffery Smith, Senior Member Decision: The respondents, jointly and severally, shall pay the applicants, jointly, the sum of $146,251.20 immediately. The respondents, jointly and severally, shall pay the applicants' costs as agreed or assessed on the ordinary basis within 30 days. The application for adjournment is refused. Legislation Cited: Home Building Act 1989, Civil and Administrative Tribunal Act 2013, Consumer, Trader and Tenancy Tribunal Act 2001 Cases Cited: David Securities Pty. Ltd. v Commonwealth Bank of Australia Ltd. [1992] HCA 48, Rowland v Composition Construction Pty.Ltd [2014]NSWCATCD 32 Category: Principal judgment Parties: Mandi Randell and Fred Randell, applicants Brett Love and Jackson Hemi Love, respondents Representation: Counsel:Mr M F Newton, appeared for the applicants There was no appearance of the respondents in person or by representative File Number(s): HB 13/61659

reasons for decision

APPLICATION 1. This application was filed in the Home Building Division of the Consumer, Trader and Tenancy Tribunal on 27 November 2013. That Tribunal was abolished from 1 January 2014 and the application proceeded in the Civil and Administrative Tribunal pursuant to the transitional provisions of the Civil and Administrative Tribunal Act 2013, Schedule 1. 2. The application was listed for directions on a number of occasions. On 11 February 2014 directions were made for the parties to file and serve Points of Claim and Points of Defence together with documentary material to be relied upon. At the next directions hearing on 8 April 2014 Mr Fred Randell was joined as second applicant and Mr Jackson Hemi Love was joined as second respondent. Directions were made to extend the time for provision of documentary material and leave for the parties to be legally represented was granted. 3. At the next directions hearing conducted on 4 July 2014 the applicants had fully prepared their documentary material in the form of witness statements, expert evidence, Scott schedule and submissions. The respondents were given an extension of time to file and serve a reply to the Scott schedule and all expert and lay evidence in reply. 4. At a further directions hearing on 12 August 2014 the respondents did not appear and had failed to comply with directions except to the extent that Points of Defence and a short (undated) statement from the first respondent had been filed on 12 and 29 May 2014, respectively. 5. On 12 September 2014 the matter came before a Senior Member for directions. The parties appeared by telephone. At that time the hearing date of 9 October 2014 was confirmed and the respondents were again granted an extension of time (until 25 September 2014) to file and serve their evidence. 6. On 7 October 2014 the first respondent made written request to vacate the hearing on 9 October 2104 based on his claimed medical incapacity to attend the hearing. A medical certificate was provided. The adjournment was refused on the basis that it provided very late notice to the applicants, was prejudicial to the applicants who had to travel from Dubbo to the hearing and because there are two respondents in partnership and no explanation was given as to why the other partner could not attend and represent both. The respondents were advised that they could raise the issue of adjournment for further consideration at the hearing. 7. A further written request for adjournment was received on the morning of the hearing. There was no appearance of the respondents. The applicants opposed the adjournment. 8. The adjournment application was refused. Again there was no explanation for the non-attendance of the second respondent. The applicant had travelled from Dubbo to attend the hearing and was accompanied by her expert witness and was represented by counsel. 9. There was no serious attempt by the respondents to prepare for the hearing despite repeated directions of the Tribunal to do so from 11 February 2014. Perfunctory preparation had been done in May 2014 but there was no further attempt to prepare for the hearing despite repeated opportunities. Additionally, the respondents had failed to comply with a costs order made by the Tribunal on 12 August 2014. 10. Taking these matters into consideration and the fact that it was a large claim filed almost a year ago it was considered that the obvious prejudice to the applicants of an adjournment could not be re-dressed. Accordingly the application for adjournment was refused. 11. In view of the application made by the respondents to adjourn the matter it was clear that the respondents had been served with notice of the hearing. For the above reasons it was considered that the justice of the case required that the matter proceed in the absence of the respondents. 12. The application originally sought orders for compensation in the sum of $165,000.00 in respect of allegedly incomplete and defective residential building work. Amended Points of Claim were filed on 4 July 2014 and with supporting documents filed at that time the application was amended to seek orders in the total sum of $143,789.25