Peter Hanna v Nelson Semaan, Badr Habib, George Semaan, Fawaz Habib and Fadi Habib [2015] NSWCATCD 38

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Peter Hanna v Nelson Semaan, Badr Habib, George Semaan, Fawaz Habib and Fadi Habib [2015] NSWCATCD 38 Hearing dates: 16 – 20 June 2014 Decision date: 24 March 2015 Jurisdiction: Consumer and Commercial Division Before: G Meadows, Senior Member Decision: Badr Habib is to pay the amount of $265,765.00 to the applicant within 60 days of the date of these orders. Catchwords: Home Building – defective works; Home Building – delay damages; Home Building - variations Legislation Cited: Civil & Administrative Tribunal Act 2013 Home Building Act 1989 Category: Principal judgment Parties: Peter Hanna—applicant Nelson Semaan, Badr Habib, George Semaan, Fawaz Habib and Fadi Habib —respondents Representation: Applicant: Mr Allan 1st respondent- Mr Young 2nd-4th respondent- Mr Walton 5th respondent- No appearance File Number(s): HB 10/16205 Publication restriction: Nil

reasons for decision 1. Mr Peter Hanna and his wife purchased a house from Mr Badr Habib in 2005. The house was completed in about 2003 or 2004. It had a number of obvious minor defects and the price was reduced in negotiations between Mr Hanna and Mr Habib. 2. Over the next three years, further very serious defects became obvious requiring urgent action. The house appeared to be unsafe. Mr Hanna and his family moved out of their home in 2009. After the urgent (but temporary) action just mentioned, no further work has been done to rectify the house. It remains uninhabitable. 3. Mr Hanna at first made a claim against Mr Nelson Semaan who he thought was the builder. He eventually joined Mr Habib as a respondent and also two of Mr Habib's children, Mr Fawaz Habib and Mr Fadi Habib, as they were also on the title to the property when he purchased it in 2005. Then he joined Mr George Semaan (Nelson's brother) because it was alleged by Mr Habib that in fact George was the builder. Apart from Mr Fawaz Habib and Mr Fadi Habib, the remaining three respondents during the course of these proceedings have all denied being the builder (or owner-builder) and assert one or more of the other two is or are the builder(s). 4. There was no written building contract. In May 2012 I found that Mr Habib and both Mr Nelson and Mr George Semaan were all builders for the purposes of these proceedings. Still nothing has been done to rectify the premises and still Mr Hanna and his family cannot live in their home. 5. For the reasons which follow, I find that Mr Habib, Mr Nelson Semaan and Mr George Semaan are severally and jointly liable to compensate Mr Hanna for the cost of rectifying defective works in the subject premises. I find those defective works will require a sum not less than $500,000.00 to rectify. 6. It would be more accurate to state that I would like to make orders based on those findings but there are further difficulties. 7. Sadly, Mr Nelson Semaan died following the hearing as the result of pancreatic cancer. The evidence had all been taken by that time. No application has been made by the applicant in relation to Mr Nelson Semaan's demise, such as amending the name of that party to the Estate of the Late Nelson Semaan. Those acting for Mr Nelson Semaan have written to the Tribunal seeking dismissal of any claim against Mr Nelson Semaan on the basis that he is deceased. 8. In addition, on the first day of the substantive hearing, 16 June 2014, the Tribunal received a facsimile from Mr George Semaan stating that he cannot defend the claim as he has been a bankrupt since 16 July 2012. That date is about two months after the preliminary decision referred to in paragraph 4 above although it is not suggested that decision led to Mr George Semaan's application for bankruptcy. The facsimile had attached to it a "Notification of Bankruptcy – Debtors Petition", stating the date of bankruptcy to be 16 August 2012. No application has been made by the owner in relation to s 58(3) of the Bankruptcy Act (Cth) (BA) and to the best of my knowledge no consent has been provided by the Court for these proceedings to continue against Mr George Semaan. 9. Section 58(3) of the BA is in the following terms: