Issa v K & K Quality Constructions Pty Ltd [2020] NSWCATAP 74

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Issa v K & K Quality Constructions Pty Ltd [2020] NSWCATAP 74 Hearing dates: 3 February 2020 Date of orders: 04 May 2020 Decision date: 04 May 2020 Jurisdiction: Appeal Panel Before: T Simon, Principal Member Dr J Lucy, Senior Member Decision: (1) The appeal is allowed. (2) The orders made by the Tribunal on 5 November 2019 are set aside. (3) The proceedings are remitted to be redetermined by a differently constituted Tribunal. (4) The registrar is directed to return to the appellant the amount of $6,270, held in the Tribunal's trust account. Catchwords: APPEAL – Home building; Where no written contract between the parties; Where builder did preliminary work; Where Tribunal awarded builder money on quantum meruit basis; Whether s 94 of the Home Building Act 1989 applied in circumstances that there was no written contract; Where Tribunal did not consider whether it would be unconscionable for the homeowner to retain the benefit of the preliminary work without payment Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Home Building Act 1989 (NSW) Home Building Regulation 2014 (NSW) Cases Cited: Allcastle Homes Pty Ltd v Wilkinson [2016] NSWCATAP 3 Grygiel v Baine [2005] NSWCA 218 Jason and Michelle Zammit trading as Zammit's Quality Constructions v Saul Markunsky and Shereen Markunsky [2015] NSWCATCD 21 Lumbers v W Cook Builders Pty Ltd (in liq) (2008) 232 CLR 635 Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221 Pender v Robwenphi Pty Ltd [2008] NSWSC 1144 Syed Ahmad Shoaib Ali Pty Ltd v Jandson Pty Ltd [2018] NSWCATAP 228 Texts Cited: None Category: Principal judgment Parties: Albert Issa (Appellant) K & K Quality Constructions Pty Ltd (Respondent) Representation: Solicitors: Appellant (Self Represented) Respondent (Self Represented) File Number(s): AP 19/51381 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 5 November 2019 Before: B Shipp, Senior Member File Number(s): HB 19/22163