Wassim Hijazi by his tutor the NSW Trustee and Guardian v SRY Constructions Pty Ltd; SRY Constructions Pty Ltd v Wassim Hijazi [2018] NSWCATCD 53

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Wassim Hijazi by his tutor the NSW Trustee and Guardian v SRY Constructions Pty Ltd; SRY Constructions Pty Ltd v Wassim Hijazi [2018] NSWCATCD 53 Hearing dates: 4 April 2018 & 5 April 2018 Date of orders: 12 September 2018 Decision date: 12 September 2018 Jurisdiction: Consumer and Commercial Division Before: P Boyce, Senior Member Decision: (1) In the Owner's, Wassim Hijazi by his tutor the NSW Trustee and Guardian, application HB17/06133, pursuant to section 48O of the Home Building Act 1989 (NSW) the Builder, SRY Constructions Pty Ltd, must rectify the defective and incomplete works in respect of Items listed in the Joint Expert report dated 13 December 2017 of Expert Roberts and Expert Cavallo, on or before 15 December 2018: (a) In respect of Items 1, 4-7, 9-30 inclusive in accordance with the agreed methodology and scope of works of the Experts; (b) In respect of Item 2 and 8 in accordance with the methodology and scope of works as recommended by Expert Cavallo; (c) In respect of Item 3 in accordance with the methodology and scope of works as recommended by Expert Roberts; (d) For the duration of the rectification and completion of the incomplete works the Owner's tutor must give the Builder unrestricted access to the work site including a security device in working order to allow entry to the site by the Builder upon the Builder giving not less than 72 hours' notice in writing by email to the Owner's tutor. (e) During the rectification and completion of the incomplete works the Builder is to have possession of the site and the site is not to be entered by the Owner or his tutor until the rectification and completion of the incomplete works are completed unless with the written agreement of the Builder. (2) In the Builder's, Sry Constructions Pty Ltd, application HB17/32146, the Owner must pay to the Builder: (a) $8,136.00 immediately; and (b) $5,610.00 within seven (7) days of the Builder giving notice that the building works for the rectification of defect and completion of incomplete works have been completed. (3) Subject to any application for costs, the proceedings HB17/01633 and HB 17/32146 are otherwise dismissed. Costs (4) Any application for costs by either party is to be supported by evidence and submissions of no more than 5 pages in length and is to be filed with the Tribunal and served on the other party on or before 12 October 2018. (5) Any evidence and submissions in response to the application for costs from the other party opposing the application for costs, of no more than 5 pages in length, is to be filed with the Tribunal and served on the Owners on or before 9 November 2018. (6) If there are no applications made for costs by 12 October 2018 there will be no order as to costs in that respective application. Catchwords: BUILDING AND CONSTRUCTION- rectification of defects and completion of incomplete works-termination of contract-repudiation of contract-damages claim by home owner and by builder- variations-quantum meruit-preferred outcome Legislation Cited: Home Building Act 1989 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: Mainteck Services Pty Ltd v Stein Heurtey SA [2014] NSWCA 184 Estrange v F Graucob Ltd [1934] 2 KB 394; Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 471 at 483-4; 211 ALR 101 at 108-9; R v Turner [1975] QB 834; R v Jenkins; ex parte Morrison [1949] VLR 277; Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; Clark v Ryan (1960) 103 CLR 486. Francis v Lyon (1907) 4 CLR 1023; Sargent v ASL Developments Ltd [1974] HCA 40; 131 CLR 634; Peyman v Lanjani [1985] Ch 457; J Kitchen & Sons Pty Ltd v Stewart's Cash and Carry Stores (1942) 66 CLR 116; Brooks v Gannon Constructions Pty Ltd [2017] Galdona v Peacock [2017] NSWCATAP 64 NSWCATCD 12 BNT Constructions v Allen [2017] NSWCATAP 186 Cuaresma v Delta Constructions Australia Pty Ltd [2017] NSWCATCD 67 Hadley v Baxendale (1854) 9 Ex 341 Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 Alexander v Cambridge Credit Corp Ltd (1987) 9 NSWLR 310 Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221 Canning v Temby (1905) 3 CLR 419 Reid v Moreland Timber Co Pty Ltd (1946) 73 CLR 1 Peregrine Systems Limited v Steria Limited [2005] EWCA Civ 239 Astea (UK)Ltd v Time Group LTD EWHC 725 (TCC) Electronic Industries Ltd v David Jones Ltd (1954) CLR 288. Watson v Foxman (1995) 49 NSWLR 315 Category: Principal judgment Parties: HB 17/06133 Applicant: Wassim Hijazi by his tutor the NSW Trustee and Guardian Respondent: SRY Constructions Pty Ltd