Keith v M & M Building Pty Ltd; M & M Building Pty Ltd v Keith [2016] NSWCATCD 43

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Keith v M & M Building Pty Ltd; M & M Building Pty Ltd v Keith [2016] NSWCATCD 43 Hearing dates: 30, 31 March 2016 Decision date: 06 May 2016 Jurisdiction: Consumer and Commercial Division Before: Jeffery Smith, Senior Member Decision: 1 The application in respect of Shaun Mowbray and Malcolm Blair is dismissed as being withdrawn pursuant to the provisions of the Civil and Administrative Tribunal Act 2013, s 55(1)(a).

2 The builder, M & M Building Pty Ltd shall pay to the homeowners Duncan Keith and Emma Keith, jointly, the sum of $421,960.69 immediately.

3 The builder, M & M Building Pty Ltd shall forthwith provide to the homeowners Duncan Keith and Emma Keith all receipts for white goods purchased on behalf of the homeowners.

4 If the parties are unable to agree on the issue of costs any party seeking a costs order must file and serve a short written submission on that issue only, within 21 days of the date of these orders. The submission shall include a short written submission on whether the Tribunal should make an order dispensing with a hearing on the issue of costs pursuant to the provisions of the Civil and Administrative Tribunal Act 2013 s 50.

5 The other party shall within 21 days of receipt of that submission file and serve a short written submission in reply. The submission shall also include a short written submission on whether the Tribunal should make an order dispensing with a hearing on the issue of costs pursuant to the provisions of the Civil and Administrative Tribunal Act 2013 s 50.

6 The applications are otherwise dismissed. Catchwords: Termination of building contract at common law Legislation Cited: Civil and Administrative Tribunal Act 2013 Home Building Act 1989 Cases Cited: Galafassi v Kelly [2014] NSWCA 190, Shevill v Builders Licencing Board [1982] 149 CLR 620, Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd [1989] 166 CLR 623, Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] 233 CLR 115 and Foran v Wight [1989] 168 CLR 385, Progressive Mailing House Pty Ltd v Tabali Pty Ltd [1985] 157 CLR 17, Tabcorp Holdings Ltd v Bowen Investments Pty Ltd [2009] 236 CLR 272, Bellgrove v Eldridge [1954] 90 CLR 613, Hadley v Baxendale [1854] 156 ER 145 Category: Principal judgment Parties: Duncan Keith and Emma Keith, (homeowners- applicants) M & B Building Pty Ltd, (builder - respondent) Representation: Counsel: Mr d'Arville for the homeowners -applicants Solicitors: Mr Snelgrove for the builder - respondent) File Number(s): HB 15/31711 and HB 15/66010 Publication restriction: Nil