Wykes v MS & SJ Schols Pty Ltd; MS & SJ Schols Pty Ltd v Wykes [2018] NSWCATCD 50

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Wykes v MS & SJ Schols Pty Ltd; MS & SJ Schols Pty Ltd v Wykes [2018] NSWCATCD 50 Hearing dates: 22, 23 March 2017, 14, 21-23 August 2017; written submissions 21 August 2017, 20 November 2017, 12 January 2018, 2 February 2018 Date of orders: 30 August 2018 Decision date: 30 August 2018 Jurisdiction: Consumer and Commercial Division Before: L Pearson, Principal Member Decision: (1) In proceedings HB 15/65625 and HB 17/05296, Shannon John Wykes and Shannon Leigh Wykes are to pay MS & SJ Schols Pty Ltd the amount of $251,551.76 within 28 days of the date of these orders;

(2) Proceedings HB 15/65625 and HB 17/05296 are otherwise dismissed;

(3) Either party may file written submissions within 14 days seeking an order in relation to the costs of the proceedings;

(4) If either party files submissions in accordance with order (3), the other party may file submissions in response within a further 14 days;

(5) Any submissions filed in accordance with orders (3) and (4) should address whether the question of costs may be determined on the papers and without a hearing pursuant to s50(2) of the Civil and Administrative Tribunal Act 2013. Catchwords: HOME BUILDING – residential building work – contract – whether fixed price or cost plus – whether written or oral – hybrid arrangement – whether sham – terms of contract – builder's defects – quantum meruit Legislation Cited: Civil and Administrative Tribunal Act 2013 Home Building Act 1989 Home Building Regulation 2014 Cases Cited: ABB Engineering Construction Pty Limited v Abigroup Contractors Pty Limited [2003] NSWSC 665 Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 Beckhaus v Brewarrina (No 2) [2004] NSWSC 1160 Bradshaw v Complete Coating Commercial Pty Ltd t/as CCC Civil [2017] NSWCATAP 209 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Eddy Lau Constructions Pty Ltd v Transdevelopment Enterprise Pty Ltd [2004] NSWSC 273 Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11.110 Kriketos v Livschitz [2009] NSWCA 96 Kurmond Homes Pty Ltd v Marsden [2018] NSWCATAP 23 Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221 Pickersgill v Tsoukalas [2009] SASC 357 Raftland Pty Ltd as trustee of the Raftland Trust v Commissioner of Taxation [2008] HCA 21; (2008) 238 CLR 516 Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234 Shevill v Builders Licensing Board (1982) 149 CLR 620; [1982] HCA 47 Sopov & Anor v Kane Constructions Pty Ltd (No 2)[2009] VSCA 141 Tsoukalas v Pickersgill & Harvey [2008] SADC 32 Texts Cited: Mason K and Carter JW, Mason & Carters Restitution Law in Australia, Third Edition, LexisNexis Butterworths, Sydney, 2016 Category: Principal judgment Parties: HB 15/65625: Shannon John and Shannon Leigh Wykes (Applicants) MS & SJ Schols Pty Ltd (Respondent)