Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Nationwide Builders Pty Ltd v Castelino [2019] NSWCATAP 157 Hearing dates: 20 May 2019 Date of orders: 20 May 2019 Decision date: 20 May 2019 Jurisdiction: Appeal Panel Before: D Charles, Acting Principal Member R Perrignon, Senior Member Decision: The appeal is dismissed Catchwords: APPEAL – no error of law – leave to appeal refused – no question of principle Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Category: Principal judgment Parties: Nationwide Builders Pty Ltd (Appellant) Kumar Joseph Castelino & Valencia Robert Menezes (Respondents) Representation: Both parties self-represented File Number(s): AP 19/13426 Publication restriction: Unrestricted Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 18 February 2019 Before: C Marzilli, General Member File Number(s): HB 18/30797 REASONS FOR DECISION 1. Reasons were given ex tempore on 20 May 2019 and subsequently, a request was received for a written statement of reasons. This is that statement. This is an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) from the following orders made in the Consumer and Commercial Division of the Tribunal on 18 February 2019: 1. Nationwide Builders Pty Ltd is to pay Arun Castelino and Valencia Menezes the sum of $10,000.00 immediately being the cost of connecting the rainwater tank to the laundry, toilets and bathroom to the applicant home owners' premises; 2. The Tribunal is satisfied that service of the notice of hearing has been duly served on the respondent builder and the Tribunal considers justice requires the matter be dealt with in the absence of the party. 3. The Deputy Divisional Registrar is to issue a certified money order to the applicant home owners. 1. On 11 November 2018, these proceedings were commenced in the Tribunal by the home owners (the respondents to this appeal), seeking the cost of rectification of defects in the construction by the appellant builder of their new home. At the hearing, although there was no contract between the parties, the home owners relied on the statutory warranties pursuant to the Home Building Act 1989 (NSW) (the HBA). The developer (named by the home owners as a respondent in the original proceedings) had gone into administration and was removed as a party to the proceedings. As we understand it, the parties resolved all but one of the alleged defects by negotiation. The sole outstanding alleged defect at hearing was the failure to connect the rain water tank to the laundry and other water services within the dwelling. 2. The Tribunal issued orders without giving reasons, except for those reflected in the Tribunal's orders, explaining that it was just to continue the hearing at first instance in the absence of the Builder. The reasons for the decision are apparent on the face of the evidence which was before the Tribunal at first instance. The home owners had obtained quotes to place a pump within the tank and to install pipework at a cost exceeding $10,000.00. We are told and accept that they indicated to the Tribunal Member that $10,000.00 would be sufficient compensation, as connection to internal services was practically impossible due to the construction method employed. 3. The grounds for appeal are as follows: 1. The Builder did not receive notice of the hearing on 18 February 2019 and did not have an opportunity to be heard. 2. There was no contract between the home owners and the Builder. 3. The Development Application and BuildX certificate did not allow for connection to services in the manner alleged, because the tank was too small to comply with Council requirements. 1. The Builder provided no evidence that it received no notice of the hearing. On 6 May 2019, the Builder was ordered to file and serve any evidence and submissions on which it relies in this appeal by 9 April 2019. The only evidence provided by the Builder in response is that of Mr Hua, which does not address whether the Builder received notice of hearing, or describe the circumstances. 2. At the hearing of the appeal, in oral submissions, the Builder's Project Manager referred to email correspondence with the Tribunal, but did not tender it, and did not explain how that email evidence would in any event evidence non receipt of the notice of hearing. In the result, the allegation of non-receipt of the notice of hearing is a bare assertion, unsupported by evidence. We are unpersuaded that the Builder did not receive notice of the hearing before the Tribunal. Ground 1 fails. 3. Section 18B of the HBA sets out the warranties which apply in home building contracts. They apply whether or not there is privity of contract between the home owners and the Builder. The statutory warranties were relied on by the home owners in the proceedings before the Tribunal, and the Tribunal made orders for compensation having satisfied itself that there had been a breach of the statutory warranties. We can identify no error in the Tribunal's decision. Ground 2 fails. 4. Ground 3 alleges that connection of the rainwater tank to internal services would have been impossible without a different development approval. That is a matter that might have been argued at first instance, if the Builder had complied with directions to file and serve evidence and submissions, even if it had not appeared. The Builder candidly admitted on appeal that its former site manager had been given the task of defending the proceedings below, but failed to deal with them in a proper manner. While that provides a reason for the failure to file and serve evidence, and perhaps even to appear, it does not excuse the Builder's conduct, or demonstrate error on the part of the Tribunal below. Ground 3 fails. 5. The Builder also applied to admit fresh evidence on appeal, to support Grounds 2 and 3. Having reviewed that evidence, we are not satisfied that it could not reasonably have been obtained by the Builder prior to the hearing below. Leave is declined. 6. For those reasons, we make the following order: 1. Appeal dismissed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 June 2019