Peter Bartel v Catherine Ryan; Catherine Ryan v Peter Bartel [2018] NSWCATCD 12

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Peter Bartel v Catherine Ryan; Catherine Ryan v Peter Bartel [2018] NSWCATCD 12 Hearing dates: 12 September 2017 13 September 2017 Date of orders: 02 May 2018 Decision date: 02 May 2018 Jurisdiction: Consumer and Commercial Division Before: J A Ringrose – General Member Decision: 1. On the Hearing of the builder's claim against the owner (HB 17/04880) the application is dismissed.

2. On the Hearing of the owner's cross claim against the builder, the builder is to pay the owner the sum of $62,300.00 within one month of the date of these orders.

3. Parties are at liberty to make a cost application in these proceedings.

4. Any cost application pursuant to s. 60 of the Civil and Administrative Tribunal Act 2013 must be lodged in the Tribunal and served on the costs respondent within 21 days of the date of this order, attaching or referring to documents relied upon in support of the application.

5. The costs respondent within 21 days after the receipt of the costs application referred to above to lodge in the Tribunal and serve on the costs applicant the submissions, if any, in response to the cost application. Such submissions shall attach or refer to the documents relied on.

6. The costs applicant will have 14 days after the receipt of the costs respondents submissions to lodge in the Tribunal and serve on the costs respondent the submissions, if any, in reply to such submissions.

7. The Tribunal will determine any costs application on the basis of the papers lodged. Catchwords: Builder's claim for cost of variations – owners cross claim for completion of the works and rectification of defective works – variations not in writing – whether the builder is entitled to quantum meruit – rejection of evidence after failure to comply with tribunal directions. Legislation Cited: Home Building Act 1989 Civil and Administrative Tribunal Act 2013 s. 38 Sch 4 cl 10(4) . Cases Cited: McDonald v Dennys Lascelles Ltd [1033] 48 CLR 457 Robinson v Harmen [1848] 154 ER 363 at 365 Gibbs CJ in Shervall v Builders Licencing Board (1982) HCA 47 Conway v Brady [2018] NSW CATAP 51 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management Pty Ltd [2013] HCA 46 Grozdanov v N & T Buildings Pty Ltd [2015] NSW CATAP 107 Conroy v Conroy [1917] NSW SR 44 Pavey and Matthews Pty Ltd v Paul [1987] 162 CLR 221 Category: Principal judgment Parties: Peter Bartel – Applicant and cross respondent Catherine Ryan – Respondent and cross applicant Representation: P G Smart of Counsel instructed by Stuart Garrett Lawyers appeared for the applicant (builder).