Petropoulos v CPD Holdings Pty Ltd t/as The Bathroom Exchange (No 2) [2018] NSWCATAP 233

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Petropoulos v CPD Holdings Pty Ltd t/as The Bathroom Exchange (No 2) [2018] NSWCATAP 233 Hearing dates: 12 February 2018 Date of orders: 08 October 2018 Decision date: 08 October 2018 Jurisdiction: Appeal Panel Before: Hennessy LCM, Deputy President G Sarginson, Senior Member Decision: (1) The First Respondent, CPD Holdings Pty Ltd t/as The Bathroom Exchange is to perform the following work ('the rectification work') using suitably licensed tradespersons and with due care and skill at the residence of the Appellant, Thea Petropoulos, on or before 7 weeks from the date of this decision: (a) Remove necessary tiles, bedding and screed adjacent to the water angle of the ensuite and shower recess areas. (b) Remove and replace the water angles and any necessary water bars of the ensuite and shower recess areas to ensure the dimensions of the ensuite and shower recess areas support the installation of 900 mm x 900 mm x 200 mm custom glass shower screens. (c) Ensure that any waterproof membrane affected by the work is adequately repaired so that it functions effectively as a waterproofing mechanism and the area is adequately waterproofed. (d) Replace all necessary tiles, bedding and screed. Replacement tiles are to be of the same colour, dimensions and type as the tiles which have been removed, or if no identical replacement tiles are available, of a colour that most closely matches the tiles which have been removed. (e) Install 900 mm x 900 mm x 200 mm custom glass shower screens. (f) Repair chip on bath. (g) Remove all debris and leave site in a clean condition. (2) The Appellant, Thea Petropoulos, is to provide reasonable access so that the rectification work can be performed. (3) By 19 October 2018 each party is to give to the Tribunal and the other party written submissions, not exceeding 6 pages, setting out any application for costs and the grounds for such an application. The submission is to include the party's views on whether a hearing should be dispensed with in accordance with s 50 of the Civil and Administrative Tribunal Act 2013 (NSW). (4) By 2 November 2018 each party is to give to the Tribunal and the other party written submissions, not exceeding 6 pages, in response to any application for costs. Catchwords: HOME BUILDING – where statutory warranty breached in relation to size of showers – whether damages or rectification appropriate remedy Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), s 36(1), s 50, s 80(3) Civil and Administrative Tribunal Rules 2014 (NSW), r 38 Fair Trading Act 1987 (NSW), ss 79R, 79T, 29U, 79V Home Building Act 1989 (NSW), ss 18B(1), 48O, 48MA Cases Cited: Agricultural and Rural Finance Pty Ltd v Gardiner [2008] HCA 57; (2008) 238 CLR 570 Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; (2013) 250 CLR 303 Bellgrove v Eldridge (1954) 90 CLR 613; [1954] HCA 36 Catapult Constructions Pty Ltd v Denison [2018] NSWCATAP 158 Cordon Investments Pty Ltd v Lesdor Properties Pty Ltd [2012] NSWCA 184 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; (2013) 250 CLR 303 Kurmond Homes Pty Ltd v Marsden [2018] NSWCATAP 23 Leung v Alexakis [2018] NSWCATAP 11 Petropoulos v CPD Holdings Pty Ltd t/as The Bathroom Exchange [2018] NSWCATAP 72 Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272; [2009] HCA 8 Walker Group Constructions Pty Ltd v Tzaneros Investments Pty Ltd [2017] NSWCA 27 Category: Principal judgment Parties: Thea Petropoulos (Appellant) CPD Holdings Pty Ltd t/as The Bathroom Exchange (First Respondent) James Morphett (Second Respondent) Representation: Counsel: M McMahon (Appellant) M Newton (Respondents)