Australia: Residential Focus - 30 November 2016

Last Updated: 5 December 2016
Article by Samuel Lane

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.