Bardon v Occhiuto Enterprises Pty Ltd [2016] NSWCATAP 191

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Bardon v Occhiuto Enterprises Pty Ltd [2016] NSWCATAP 191 Hearing dates: 10 August 2016 Date of orders: 26 August 2016 Decision date: 26 August 2016 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President A Boxall, Senior Member Decision: The appeal is dismissed. Catchwords: Renewal of proceedings; clause 8 of schedule 4 of the Civil and Administrative Tribunal Act 2013 Legislation Cited: Civil and Administrative Tribunal Act 2013 Home Building Act, 1989 Cases Cited: Honeywood v Munnings (2006) 67 NSWLR 466; [2006] NSWCA 215 Suttor v Gundowda Pty Ltd [1950] HCA 35 Texts Cited: Nil Category: Principal judgment Parties: Lois Bardon (Appellant) Occhiuto Enterprises Pty Ltd (Respondent) Representation: Counsel: Not applicable

Solicitors: Not applicable File Number(s): AP 16/23175 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Citation: Not applicable Date of Decision: 14 April 2016 Before: M Dicker, Senior Member File Number(s): HB 15/66475

reasons for decision

Background 1. This appeal arises out of a decision published in the Consumer and Commercial Division of the Tribunal on 14 April 2016. The appellant is the homeowner and the respondent to the appeal is a company which agreed to undertake a bathroom renovation to the appellant's premises. At the hearing of the appeal the appellant represented herself. The respondent was represented by Mr P Occhiuto, a director. 2. The appeal was filed on 16 May 2016 and the appellant says that she received notice of the decision on or about 21 April 2016. Accordingly, the appeal appears to have been filed in time. 3. It is necessary to explain what occurred previously in these proceedings. 4. The respondent filed an application in the Tribunal in 2015. That application resulted in consent orders being made by the Tribunal on 9 October 2015. Order 1 provided that the applicant (now the respondent to the appeal) is to carry out "the following work on or before 20 November 2015 in a proper and workmanlike manner". A number of items were then specified under the heading "Details of Work Order". By order 2 the Tribunal ordered by consent that the appellant was to pay to the respondent $13,875.00 on or before 10 October 2015 and $449.00 on completion of the work specified in order 1. In addition the orders made by the Tribunal state that the sum of $14,324.00 is in "full and final payment in settlement of the contract price and the works carried out". 5. The parties both acknowledge that the relevant contract referred to above is a contract in writing dated 6 December 2014 which has the heading "Caracolla Design and Renovation". It also contains the heading "Quotation" and "Bathroom Renovation". The contract then lists items which are to be undertaken under the headings Demolition, Plumbing, Electrical, Construction, Preparation, Finishes and Completion. Each of these items are further detailed including a description of the scope of works. 6. On 14 December 2015 the appellant filed a notice to Renew Proceedings in the Tribunal. The appellant sought compensation in the sum of $5,000.00 and claimed that the order of 9 October 2015, referred to above was not fully complied with. Particulars of non-compliance were supplied. 7. The appellant's application to renew the proceedings was dismissed at the hearing which occurred on 13 April 2016. The reasons for decision were published the following day, 14 April 2016. This is the decision under appeal and we shall refer to it as "the Decision". 8. The Decision referred to the fact that the parties discussed the matter with the help of a mediator and prepared a written agreement which was signed by both parties. That agreement commences with the words: The respondent agrees to allow Occhiuto Enterprises to access the site to complete the bathroom in accordance with... Then followed a list of items to be undertaken. The agreement also stated that the respondent will make a payment by 10 October 2015 of $13,875.00 equal to 85% of the outstanding $16,324.00 to be paid. The balance of $449.00 was to be paid later. 1. We were provided with a transcript of the hearing before the Tribunal on 9 October 2015. It is apparent that the following occurred at the hearing: 1. Mr Phillip Occhiuto represented the applicant (the respondent in the appeal); 2. The appellant was present and assisted by Mr Chris Holmes (who we are informed by the appellant is her brother in law); 3. The Member was handed the agreement reached by the parties before the mediator and using that agreement typed up the orders of the Tribunal; 4. The orders were the subject of discussion between the Member and the parties and as the Member typed up the items in the work order obtained the parties consent to the proposed wording; 5. There was discussion as to the terms of order 2 and it was agreed by the applicant that there was a discount of $2,000.00 (page 7, line 16 of the transcript) and that the respondent (now the appellant) agreed with the proposed figures and the discount (page 9, line 21 of the transcript); 6. The order was then read out by the Member in full and the Member asked whether the parties agreed. Both parties stated that they consented to the orders (page 10, line 39 to 46 of the transcript); 7. Mr Holmes raised the question of the tap (page 10, line 50 of the transcript) and Mr Occhiuto initially agreed to "put it on there" but then stated that he would not put that on the order (page 11, line 30 of the transcript). However, he agreed to have the plumber "have a look" (page 11, line 31 of the transcript); 8. The respondent (now the appellant) asked whether she could come back and the Member replied that she could not come back (page 12, line 22 of the transcript). The Member then said the following: "If he does not do the job, you can come back, and if he does this work you cannot come back for anything else, or change your mind". The respondent replied "okay". The Member also said: "after November you will not have anything further to do with it" (page 12, line 40 of the transcript); 9. The Member then made the orders which were stated to be by consent. 1. The essence of the Decision was that the terms of the handwritten agreement and the terms of the consent order both indicated that the parties had agreed that the only items for the respondent to complete were those specified in the orders of 9 October 2015. The appellant's contention that the respondent was obliged to complete the bathroom entirely, not just the items specified in the 9 October 2015 order was rejected. The Member found that on the balance of probabilities the appellant had failed to prove that the respondent was in breach of the orders made on 9 October 2015. The Decision referred to the respondent's submission that only the items specified in the order of 9 October 2015 had to be completed and found that that interpretation of what had been agreed was correct.