Withers v Alexander [2016] NSWCATCD 28

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Withers v Alexander [2016] NSWCATCD 28 Hearing dates: 20 November 2015 and 16 February 2016 Decision date: 13 April 2016 Jurisdiction: Consumer and Commercial Division Before: K Ross, General Member Decision: The respondent is to pay the applicants the sum of $2,836.27, on or before 13 May 2016. Catchwords: Incomplete work, defective work Legislation Cited: Home Building Act 1989 Category: Principal judgment Parties: Ron Withers and Sue Withers (applicants) William Glen Alexander (respondent) Representation: Both parties appeared in person File Number(s): HB 15/45761 Publication restriction: Unrestricted

reasons for decision

The application 1. The applicants claim a refund from the respondent of the sum of $8,000.00 which they paid to him for work on their bathroom. The applicants allege that the respondent did not hold the correct license, and breached the Home Building Act 1998 by failing to provide a contract which complied with the Act, failing to advise of cooling off provisions, demanding a deposit of greater that 10% of the price, and failing to carry out the work in a proper and workmanlike manner. The applicants claim a refund of the sum of $8,000.00 paid to the respondent. 2. The respondent opposes the orders sought.

The proceedings 1. The respondent's expert did not appear at the hearing on 20 November 2015. To facilitate the progression of the matter, the Tribunal asked the applicant's expert to telephone the respondent's expert and report as to whether the differences between them could be narrowed. The applicant's expert did so, and gave evidence of what he said transpired in that conversation. The Tribunal heard the evidence and reserved its decision. A short time after the hearing the Tribunal received a letter from the respondent's expert alleging that his conversation with the Tribunal had been misrepresented. The Tribunal directed the experts to confer and file with the Tribunal a short report, indicating the areas of agreement and difference between them. No such report was filed. The Tribunal also directed that the parties and experts appear before the Tribunal to resolve the issue. The respondent's expert did not appear as directed. 2. Both parties have provided additional documentation to the Tribunal since the hearing on 20 November 2015. At the hearing on 26 February 2016, the applicant's expert and the applicants' son began to strenuously challenge the respondent. The matter had not been listed for such a purpose. In the absence of an appearance by the respondent's expert, the Member determined that the hearing should be brought to a conclusion. The Tribunal does not intend to take into account any of the documents supplied to the Tribunal since the November hearing, with the exception of the emails which cast some light on the failure of the experts to provide the joint report ordered.