Buckley v Ashby; Ashby v Buckley [2018] NSWCATCD 82

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Buckley v Ashby; Ashby v Buckley [2018] NSWCATCD 82 Hearing dates: 13 and 14 March 2018 Date of orders: 07 December 2018 Decision date: 07 December 2018 Jurisdiction: Consumer and Commercial Division Before: D Goldstein, Senior Member Decision: 1. In HB 17/18437, Joseph Ashby must pay Samantha Buckley the sum of $49,988.75 immediately.

2. In HB 17/45250, Samantha Buckley must pay Joseph Ashby the sum of $45,120.34 immediately.

3. Any costs application must be lodged in the Tribunal and served on the costs respondent within 14 days of the date of this order either attaching or referring to the documents relied upon in support of the application.

4. The costs respondent will have 14 days after the date it receives the application to lodge in the Tribunal and serve on the costs applicant its submissions, if any, in response to the cost applicant's costs application, such submissions either attaching or referring to the documents relied upon.

5. The cost applicant will have 14 days after the date it receives the cost respondent's submissions to lodge in the Tribunal and serve on the costs respondent its submissions, if any, in reply, such submissions either attaching or referring to the documents relied upon.

6. The parties must state in their submissions whether they consent to the costs application being determined on the basis of the parties written submissions and attached documents, if any, without the need for a hearing.

7. Subject to considering the parties submissions regarding a hearing on costs, the Tribunal will determine any costs application on the basis of the papers lodged in the Tribunal. Catchwords: BUILDING AND CONSTRUCTION - Extrinsic evidence – Use of to identify the subject matter of the contract, Termination of contract - Acceptance of repudiation Home building – unenforceable claims - Restitution Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Act 2013 Home Building Act 1989 Cases Cited: BP Refinery (Western port) Ltd v Shire of Hastings (1997) 180 CLR 266 Brenner v First Artists' Management Pty Ltd [1993] 2 VR 221 Council of the City of Sydney v Woodward [2000] NSWCA 201 County Securities Pty Limited v Challenger Group Holdings Pty Limited & Anor [2008] NSWCA 193 Dimitropoulos v Capital Constructions Pty Ltd; Capital Constructions Pty Ltd v Dimitropoulos [2018] NSWCATAP 100 Eddy Lau Constructions Pty Ltd v Transdevelopment Enterprise Pty Ltd Koompahtoo Local Aboriginal Land Council v Sanpine Pty Limited [2007] HCA 61 Mitsiou v Zanatta; Jenalp Pty Limited v Mitsiou [2018] NSWCATAP 187 Mount Bruce Mining Pty Limited v Wright Prospecting Pty Limited (2015) 256 CLR 104 Pavey & Matthews Pty Ltd v Paul [1987] HCA 5; (1987) 162 CLR 221 Pavey & Matthews Pty Ltd v Paul [1987] HCA 5; (1987) 162 CLR 221 Shepherd v Felt & Textiles of Australia Ltd [1931] HCA 21; (1931) 45 CLR 359 Update Constructions Pty Ltd v Rozelle Child Care Centre Ltd White v Australian and New Zealand Theatres Ltd [1943] HCA 6; (1943) 67 CLR 266 Texts Cited: Dorter & Sharkey Building and Construction Contracts in Australia Category: Principal judgment Parties: In HB 17/18437: Samantha Buckley (Applicant) Joseph Ashby (Respondent)