Woodward v D J & T L Mellross Pty Ltd t/as Mellross Homes [2018] NSWCATCD 42

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Woodward v D J & T L Mellross Pty Ltd t/as Mellross Homes [2018] NSWCATCD 42 Hearing dates: 22 June 2018 Date of orders: 16 August 2018 Decision date: 16 August 2018 Jurisdiction: Consumer and Commercial Division Before: D Goldstein, Senior Member Decision: The proceedings are dismissed. Catchwords: Res judicata – Anshun estoppel Legislation Cited: Civil Liability Act 2002 Home Building Act 1989 Cases Cited: Blair v Curran (1939)62 CLR 464 Moore v Scenic Tours Pty Limited (No.2) [2017] NSWSC 733 Nguyen v Cosmopolitan Homes [2008] NSWCA 246 Pearson v Clark [2016] NSWCATAP 134 Port of Melbourne v Anshun Pty Ltd [1981] HCA 45, 147 CLR 589 Ravenscroft v Skinner [2016] NSWCATAP 107 Stone v Chappel [2017] SASCFC Tralee Technologies Holdings Pty Ltd v Yun Chen [2015] NSWSC 1259 Woodward v D J & T L Mellross Pty Ltd [2018] NSWCATAP 179 Category: Principal judgment Parties: Nigel Woodward: Applicant DJ & TL Mellross Pty Ltd: Respondent Representation: The parties were self-represented File Number(s): HB 17/45873 Publication restriction: Nil

REASONS FOR DECISION 1. In these proceedings the applicant claims damages against the respondent because allegedly, a residence with associated structures built by the respondent for the applicant and his wife was not built in the precise locations shown on the contractual plans. 2. There is no dispute between the parties that the applicant's claim is a 'building claim' for the purposes of section 48A of the Home Building Act 1989 (the 'Act') and that the Tribunal has the jurisdiction to hear and determine the claim under section 48K of the Act. 3. In proceedings HB 16/52751 which were heard and determined on 19 September 2017, the Tribunal heard and determined claims brought by the applicant against the respondent in relation to defective building work performed by the respondent for the applicant and his wife in connection with the same residence the subject of these proceedings. 4. In these Reasons for Decision I will refer to the applicant as the owner and to the respondent as the builder. 5. These proceedings were heard in Yass on 22 June 2018. 6. The evidence relied upon by the owner was: 1. Exhibit A, bundle of documents filed in the Tribunal on 18 April 2018; and 2. Exhibit B, bundle of documents filed in the Tribunal on 22 November 2017. 1. The builder did not file evidence but filed Amended Points of Defence with various attached documents which I accepted as exhibit 1. The builder also filed submissions on 5 February 2018. 2. The owner claims $50,000.00 for breach of a building contract. Specifically he alleges that the builder failed to construct a house and a water tank precisely where they ought to have been situated in accordance with a site plan referred to in the contract signed by the parties. 3. The damages of $50,000.00 are claimed on the basis of loss of amenity and disappointment. The claim is broken up into four items as follows: 1. the house was constructed 8 m away from an existing shed when that distance should have been 7 m; 2. the house was constructed 15.8 m from the back fence of The property when that distance would have been 16.315 m; 3. the water tank was located 7.5 m from the house when that distance should have been 5 or 6 m; 4. the water tanks were installed 2.7m forward of the rear wall of the house when they should have been installed in line with the rear wall of the house.