Trevor John Kelly t/as TJ & Kelly v Smith [2016] NSWCATCD 92

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Trevor John Kelly t/as TJ & Kelly v Smith [2016] NSWCATCD 92 Hearing dates: 28 September 2016 Decision date: 02 December 2016 Jurisdiction: Consumer and Commercial Division Before: J A Ringrose, General Member Decision: 1. The respondents are to pay the applicant the sum of $5,438.43 within one month of the date of these orders.

2. Each party is to bear its own costs. Catchwords: Home Building – recovery of extras and variations not authorised in writing-quantum meruit Legislation Cited: Home Building Act 1989 Cases Cited: Pavey and Matthews Pty Ltd v Paul [1987] HCA 5 Urban Constructions (NSW) Ltd v Brett and Bronwyn Shearer [2015] NSWCATCD 9 Eden Constructions Pty Ltd v Grigor [2016] NSWCATAP 182 Jason and Michelle Zammit (t/a Zammit Quality Constructions) v Soul Markunsky and Shereen Markunsky [2015] NSWCATCD 21 Lauer v Comer (No. 2) [2016] NSWCATAP 158 Lumbers v Cook [2008] 232 CLR 635 Category: Principal judgment Parties: Trevor John Kelly t/as TJ and MA Kelly (applicant) Helen and Gary Smith (respondents) Representation: Mr Biffin, solicitor, appeared for the applicant Ms Wood, solicitor, appeared for the respondent File Number(s): HB 16/31153 Publication restriction: Nil

reasons for decision 1. By an application filed on 5 July 2016 the applicant claimed a sum of $16,042.93 being for building works undertaken for the respondent which were commenced on 7 August 2015 and completed on 3 December 2015. The cost of works was claimed to be $23,692.93 less a sum of $7,650.00 which had been paid by the respondents. Attached to the application was a quotation for careful works to be carried out for a total sum of $7,500.00 including PC items of $500.00 for electrical and plumbing and an allowance for materials of $500.00. 2. By a letter dated 26 July 2016 Mr Biffin, solicitor from R J O'Halloran and Co. noted that he sought leave to appear on behalf of the applicants and at the same time indicated that he would have no objection to the respondent seeking legal representation. 3. On 27 July 2016 when the matter came before the Tribunal directions were made for the applicant to file all documents including expert reports witnessed statements and a Scott Schedule by 17 August and the respondents to provide all documents including expert reports, witness statements and a Scott Schedule by 7 September. Material was received by both parties and the matter was listed for hearing through a video conference from Tamworth on 28 September 2016.