Paraiso v CBS Build Pty Ltd [2020] NSWSC 190

Supreme Court New South Wales

Medium Neutral Citation: Paraiso v CBS Build Pty Ltd [2020] NSWSC 190 Hearing dates: 28 October 201922 November 2019 Date of orders: 11 March 2020 Decision date: 11 March 2020 Jurisdiction: Common Law Before: Fagan J Decision: (1) Leave to appeal granted in respect of grounds 1(ii), 5(i), 5(ii), 6 and 8 in the plaintiff's amended summons and each of the said grounds is upheld. (2) Leave to appeal refused in respect of all other grounds in the plaintiff's amended summons. (3) The appeal is allowed. (4) The orders of the Appeal Panel of the Civil and Administrative Tribunal made 19 August 2019 are set aside. (5) In lieu thereof the following orders are made: (a) Grounds 3, 7 and 10 of the appeal to the Appeal Panel and so much of ground 14 as relates to Variations Nos 0 and 58 are upheld. (b) The appeal to the Appeal Panel is allowed. (c) The Senior Member's order (1) made 14 March 2019 that the owner pay the builder $94,381.21 is set aside. (d) The proceedings are remitted to a Member of the Tribunal in the Consumer and Commercial Division other than the Senior Member whose decision is the subject of the appeal, for re-determination of the amounts payable or repayable between the parties in respect of variations and provisional sums. (e) Upon redetermination of the amounts payable or repayable between the parties under order (d), the Member to whom the proceedings are remitted is to take into account a credit to the plaintiff of $11,858.34 in respect of Home Owner's Warranty insurance premium. Catchwords: CONTRACT - building - whether variations required to be in writing and signed - consequence of non-compliance - Home Building Act 1989 s7E - terms that do not require variations to be in writing and signed unenforceable