Miller v Kadir [2020] NSWCATAP 57

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Miller v Kadir [2020] NSWCATAP 57 Hearing dates: 16 March 2020 Date of orders: 02 April 2020 Decision date: 02 April 2020 Jurisdiction: Appeal Panel Before: P. Durack SC, Senior Member G.Sarginson, Senior Member Decision: (1) The appeal is upheld. (2) Order 2 made by the Tribunal on 13 December 2019 in Matter HB 19/29787 that the cross-claim proceedings be dismissed is set aside. (3) The cross claim in Matter HB 19/29787 is remitted for re-determination by the Tribunal. (4) The Tribunal is directed to list the cross claim for directions at a date to be allocated by the Tribunal Registry but not earlier than 3 weeks from 16 March 2020. (5) NOTED: Whilst the parties have not arrived at a concluded agreement to settle the matter, the Appeal Panel notes the parties expressed the following with regard to the potential resolution of the dispute: (a) The appellant ('the homeowner') and the respondent ('the builder') agree the pool does not currently meet Australian Standards concerning the level of the pool, as set out in the report of the building inspector of NSW Fair Trading dated 19 December 2019. (b) The builder has expressed his intention to perform work to rectify the pool so that it meets the relevant Australian Standards with regard to the level of the pool. (c) The builder will conduct an inspection of the pool within 2 weeks. (d) The homeowner will provide reasonable access so that an inspection will occur. (e) The parties will have further discussions regarding an appropriate scope of works to rectify the defect in the pool so that it meets Australian Standards as set out in the report of the building inspector of NSW Fair Trading. (f) Additionally, the builder intends to carry out the work referred to in Section C of the Notice of Appeal; namely clean and seal tiles; and complete path from home to pool gate. Catchwords: APPEALS – home building - building defect in swimming pool – errors in dismissing claim Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Home Building Act 1989 (NSW) Cases Cited: Catapult Constructions Pty Ltd v Denison [2018] NSWCATAP 158 Category: Principal judgment Parties: Martin Miller (1st Appellant) Tracy Miller (2nd Appellant)