Builtex Constructions Pty Ltd v He [2019] NSWCATAP 95

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Builtex Constructions Pty Ltd v He [2019] NSWCATAP 95 Hearing dates: 3 September 2018 Date of orders: 18 April 2019 Decision date: 18 April 2019 Jurisdiction: Appeal Panel Before: K Rosser, Principal Member R Perrignon, Senior Member Decision: (1) Leave to appeal is refused. (2) The appeal is dismissed. (3) The appellant is to pay the respondent's costs of the appeal, as agreed or assessed. (4) If either party seeks a different costs order, the following orders apply: (a) Order 3 is stayed until further order of the Appeal Panel. (b) The party seeking a different costs order (the costs applicant) is to file an application, supported by evidence and submissions, within 14 days of the date of publication of these orders. (c) The other party is to file and serve evidence and submissions in response to the application within 14 days thereafter. (d) The costs applicant is to file and serve any submissions in reply within 7 days thereafter. (e) Subject to the parties' submissions, an application for a different costs order will be determined on the papers. Catchwords: APPEAL – construction of building contract – whether notice of dispute given in accordance with the contract – whether notice of default given in accordance with the contract – whether contract validly terminated – exercise of costs discretion – leave to appeal Legislation Cited: Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Act 2013 Civil and Administrative Tribunal Rules 2014 Home Building Act 1989 Cases Cited: Ankar Pty Ltd v National Westminster Finance Limited (1987) 162 CLR 549 Associated Newspapers Limited v Bancks (1951) 83 CLR 322 Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304 Collins v Urban [2014] NSWCATAP 17 DTR Nominees Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423 Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373 Hawkesbury District Health Service Ltd v Chaker (No 2) [2011] NSWCA 30 House v The King (1936) 55 CLR 499 James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 Jones v Bradley (No. 2) [2003] NSWCA 258 M & M Building Pty Ltd v Keith [2017] NSWCATAP 88 Macourt v Clark (No 2) [2012] NSWCA 411 Miwa Pty Ltd v Siantan Properties Pte Ltd (No. 2) [2011] NSWCA 344 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Ruddock v Vadarlis [2001] FCA 1865 Shepherd v Felt Textiles Australia Ltd [1931] 45 CLR 359 Singapore Airlines Cargo Pty Ltd v Principle International Pty Ltd (No 2) [2017] NSWCA 340 Sunbird Plaza Pty Ltd v Maloney (1988) 166 CLR 245 Sydney Ferries v Morton (No 2) [2010] NSWCA 238 Tomanovic v Global Mortgage Equity Corporation Pty Ltd (No 2) (2011) 288 ALR 385 Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd (1938) NSWLR 633 Texts Cited: Nil Category: Principal judgment Parties: Builtex Constructions Pty Ltd – Appellant Katrina Wai San He – Respondent Representation: Counsel: Mr R Zikmann – Appellant Mr S Goldstein - Respondent