Subedi v AA Concrete Pty Ltd [2017] NSWCATCD 54

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Subedi v AA Concrete Pty Ltd [2017] NSWCATCD 54 Hearing dates: 24 July 2017 Decision date: 04 August 2017 Jurisdiction: Consumer and Commercial Division Before: Francesco Corsaro, SC, Senior Member Decision: 1. The respondent, AA Concrete Pty Ltd is to immediately pay the applicant, Mr Manish Samedi, the amount of $8,415.21. Catchwords: Building claim – breach of contract – failure to complete works and delay to works – contract terminated – damages for breach Legislation Cited: Home Building Act 1989 (NSW) Category: Principal judgment Parties: Manish Subedi (Applicant) AA Concrete Pty Ltd (Respondent) Representation: Applicant in person The Respondent did not appear at the hearing File Number(s): HB 17/04767 Publication restriction: Unrestricted

REASONS FOR DECISION

INTRODUCTION 1. The applicant, Mr Manish Subedi, commenced proceedings against the respondent, AA Concrete Pty Ltd (AA Concrete) by lodging an application with the Tribunal on 1 February 2017. By that application, Mr Subedi claims the amount of $50,000 from AA Concrete, said to be the amount of the loss and damage that Mr Subedi has incurred due to AA Concrete's breach of contract relating to landscaping and other external works to Mr Subedi's residence.

PROCEDURAL HISTORY 1. The Tribunal first listed Mr Subedi's application before the Tribunal on 27 February 2017. A telephone direction hearing took place that day. Mr Subedi appeared by telephone, AA Concrete did not. According to the Tribunal's file, the Tribunal called AA Concrete's telephone number. That call was answered and the company name confirmed to the Tribunal as being AA Concrete's telephone. When the Tribunal member asked to speak to Mr Richard Saunders, the receiver disconnected the call. This action prompted the Tribunal member to note: The Tribunal notes that if the respondent refuses to serve any evidence or attend the hearing the matter will proceed in its absence and any order made will be binding on the respondent. 1. The Tribunal made a number of procedural orders to ensure that the application could proceed to hearing, including orders for the service of expert reports and any documentary material on which the parties intended to rely. 2. The Tribunal fixed the application for hearing on 24 July 2017, and notified the parties of the hearing date that had been allocated in the usual way. 3. All written notification of the orders and directions made by the Tribunal that have been sent to AA Concrete's registered office has been returned to the Tribunal marked "return to sender". 4. Mr Subedi appeared at the hearing on 24 July 2017 in person. AA Concrete did not appear. I considered that AA Concrete was properly notified of the hearing date by notice sent to its registered office, and last known address. I saw no justification for prejudicing Mr Subedi, who appeared ready to proceed at the notified hearing. Accordingly, I believed that it was appropriate for the Tribunal to proceed to hear and determine Mr Sabedin's application in AA Concrete's absence. 5. Mr Sabedi relied on the application and the documentary material provided to the Tribunal. When I enquired whether Mr Sabedi have provided AA Concrete with a copy of that material, Mr Sabedi showed me the original envelope sending the material to AA Concrete's registered office returned and unopened and marked "return to sender". As I considered that Mr Sabedi had complied with the Tribunal's directions, and I considered that AA Concrete had an obligation to ensure the currency of its registered office, I permitted Mr Sabedi to rely on the documents provided to the Tribunal in support of his application.