Daoud v Hammoud [2017] NSWCATAP 114

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Daoud v Hammoud [2017] NSWCATAP 114 Hearing dates: 20 February 2017 and 3 April 2017 Date of orders: 22 May 2017 Decision date: 22 May 2017 Jurisdiction: Appeal Panel Before: P Durack SC, Senior Member D Charles, Senior Member Decision: (1) The appeal is allowed in part.

(2) The orders made by the Tribunal Member on 20 October 2016 are set aside.

(3) In substitution for the orders made by the Tribunal Member on 20 October 2016, order that the Tribunal Member reconsider the amount payable by the Builder to the Home Owners in the renewal proceedings brought by the Home Owners, being File number HB 16/18392, and the amount payable by the Home Owners to the Builder in the cross-application brought by the Builder, being File number HB 16/26546, and the net amount payable after setting off these two amounts, but that such reconsideration by the Tribunal Member is to proceed on the basis that the amounts payable are the same amounts as were determined to be payable in the decision of the Tribunal Member dated 20 October 2016, save that:

(a) the sum total of amounts paid by bank transfers to the Builder is to be $272,000.00 and not $275,000.00;

(b) In File Number HB 16/18392 the quantum of the amounts to be paid by the Builder to the Home Owners in respect of items 2a, 2b and 2j in the Paragraph 28 Schedule is to be reconsidered by the Tribunal Member with leave for the parties to adduce further evidence.

(c) In File Number HB 16/26546 the amounts of $500.00 in respect of "Application Fees", $500.00 in respect of "Service NSW receipt" and $2,600.00 in respect of "Repair and install 5 columns 2 front and 3 rear" as set out in the Paragraph 38 Schedule are not to be deducted from the amount to be ordered to be paid by the Home Owners to the Builder. Catchwords: APPEAL – home owners' renewal application in respect of defective and incomplete residential building work – builder's cross application for balance of contract price including variations – adequacy of reasons on particular disputed items - procedural fairness - appeal allowed in part. Legislation Cited: Home Building Act 1989 Home Building Regulation 2014 Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Cases Cited: Collins v Urban [2014] NSWCATAP 17 Coulton v Halcombe [1986] HCA 33; 162 CLR 1 Hernady v Raccani [2016] NSWCATAP 67 Hudson v Arp 1 (NSW) Pty Ltd [2014] NSWCATAP 31 M&M Building Pty Ltd v Keith [2017] NSWCATAP 88 Pavey & Matthews v Paul [1987] HCA 5; (1987) 162 CLR 221 Suttor v Gundowda Pty Ltd [1950] HCA 35; 81 CLR 418 Xu v Jihong Design & Constructions Pty Ltd [2011] NSWCA 277 Category: Principal judgment Parties: N & L Daoud (Appellants) Ali Hammoud & Mary Hammoud (Respondents) Representation: Solicitors: In Person (Appellant) In Person (Respondent) File Number(s): AP 16/49766 Publication restriction: Unrestricted Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 20 October 2016 Before: G Meadows, Senior Member File Number(s): HB 16/04193, HB 16/18392 & HB 16/26546