Australia: Residential Focus - 30 November 2016

Last Updated: 5 December 2016
Article by Samuel Lane
Most Read Contributor in Australia, September 2018

Antworks Pty Ltd v Mac [2016] NSWCATAP 240

In the matter of Antworks Pty Ltd v Mac [2016] NSWCATAP 240, the Tribunal considered an application for a stay, pending an appeal. The net effect of the orders of the Tribunal below was that Antworks (the Builder) pay to Mac (the Owner) the amount of $72,689.27.

In the appeal the Builder raised a procedural fairness point and argued that the Tribunal was in error as to calculating the contractual date for completion and rejecting claims for extension of time.

In the stay application, the Builder repeated its grounds of appeal and argued that should the original orders stand, the Owner would obtain an unjust enrichment and that the Builder would be unable to continue to operate its business and prosecute the appeal simultaneously.

The primary focus of the Builder's submissions was around the Tribunal's conclusion that the contract had been validly terminated, with the Builder asserting that the Tribunal's reasons did not amount to a finding of a valid termination. The Builder also submitted that its building licence had been suspended and that without a stay it would be unable to carry on a business and/or exercise its rights of appeal.

In reaching a decision on the stay application, the Tribunal considered the principles applicable to a grant of stay which were summarised by Wright J in Bentram Pty Ltd v Sabbarton [2014] NSWCATAP 37. In particular, the Tribunal examined the strength of the Builder's appeal and whether it had demonstrated an appropriate case to warrant the exercise of the discretion. The Tribunal was of the view that the reasoning of the Tribunal below was likely correct, and that the breaches leading to termination could not have been remedied.

In submissions, the Owner highlighted a previous costs order, which had not been paid and noted that the Builder had applied to the ASIC for voluntary deregistration after the appeal was lodged. This tended to undermine the argument that the Builder would be unable to operate unless a stay was granted. The Builder had not filed any evidence of its financial position.

In dismissing the stay application the Tribunal found there was no reason to displace the general position that a successful party should not be deprived of the benefit of their first instance decision and noted firstly that the Builder had apparently inappropriately applied for deregistration and secondly that to grant a stay may operate to deprive the Owner of any prospect of recovery.

In the media

MBA: Positive Housing Finance Data Suggests Boom In Residential Building May Go Another Few Rounds
The total value of mortgage lending in September was recorded at $32.3 billion, a welcome 2.3 per cent lift on the value of approvals in August, marking a turnaround in approvals following two months of negative growth (10 November 2016). More...

Sydney set for biggest-ever housing boom
The NSW Government is putting the focus on housing affordability in a five-year construction bonanza that will deliver almost 200,000 new dwellings in established areas (19 November 2016). More...

More homes and jobs with record approvals
Thousands of new homes, workplaces and shops will be built across NSW following a record-breaking $15 billion worth of development being approved in the last financial year (07 November 2016). More...

In Practice and Courts

ABCB's 2017 NCC Information Seminars Registrations Now Open
Registrations are NOW OPEN for the Australian Building Codes Board's (ABCB) 2017 NCC Information Seminars. The series will include presentations from the ABCB, Standards Australia and local Building Control Administrations (17 November 2016).

Senate Inquiry Update
Non-conforming building products
Status: Accepting Submissions; Date Referred: 11 October 2016; Submissions Close: 01 December 2016; Reporting Date: 25 May 2017 More...


Troy Hood trading as UR Place Landscape v Rutten [2016] NSWCATAP 250
APPEAL – Civil and Administrative Tribunal NSW – procedural fairness – appeal on a question of law – reasonable opportunity to be heard – adducing medical evidence to support ground of appeal

At the hearing at first instance, the Tribunal ordered the appellant to pay for repairs and other associated costs in relation to alleged defective work in connection with a travertine tiled area around a swimming pool.

Oh v Grima [2016] NSWCATAP 239
The appeal is dismissed. The decision under appeal is affirmed. Those matters were:

The application of the Homeowners, HB 15/30174. The Homeowners claimed $100,163.24 in respect of incomplete and defective works. The application of the Builder, HB/38304. The Builder claimed $72,250 for unpaid works, alternatively $154,400 as a quantum meruit.

Antworks Pty Ltd v Mac [2016] NSWCATAP 240
Stay pending appeal- applicable principles, capacity to pay, suspension of builder's licence.

Markunsky v Zammit t/a Zammit Quality Constructions [2016] NSWCATAP 253
Exercise of the discretion to award costs under cl 20 of the Consumer, Trader and Tenancy Tribunal Regulation 2009 (NSW) — application of the "compensatory principle" in proceedings where there are multiple issues and each party enjoys a measure of success.

Guy and Anor v K J & W E McIlveen t/as K J McIlveen Builders [2016] NSWCATCD 77
Variations not in writing – quantum meruit compensation for rectification of defective works and for delays in completion.

Mac v Antworks Pty Ltd [2016] NSWCATCD 75
Extensions of time, termination of building contract, defective and incomplete work, liquidated damages.

Tsui v Commissioner for Fair Trading [2016] NSWCATOD 143
ADMINISTRATIVE REVIEW – Home Building Act – endorsed contractor licence – general building category – relevant industry experience.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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Samuel Lane
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