Australia, Nov. 30 -- New South Wales Land and Environment Court issued text of the following judgement on Nov. 29:

1. This is an internal appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 NSW (the NCAT Act) against decisions made in the Consumer and Commercial Division of the Tribunal on 29 July 2023 (the Substantive Decision) and on 18 September 2024 (the Costs Decision).

2. The Tribunal's Decisions concerned an application brought by Champion Homes Sales Pty Ltd (the Builder) against Evonne Voulgaris (the Owner) under the Home Building Act 1989 NSW (the HB Act) in respect of their disputes arising from a building contract for the construction of a two-storey dwelling on the Owner's property at Eastlakes NSW (the Site), which was signed by the parties on 23 June 2022 (the Contract).

3. Relying on agreed damages clauses under the Contract, which it alleged were a genuine pre-estimate of its damages for the Owner's breach of the Contract, the Builder sought to recover an amount of $74,374.63, comprising damages of $79,000 (the 'equivalent' of 15% of the Contract's Purchase Price, pursuant to cl 29 and/or cl 44.15 of the Contract), plus $9,874.63 (being reimbursement of fees and charges) less $15,000 (being a credit for the tender fee paid by the Owner).

4. With the agreement of both parties, the Builder's application for orders of the Tribunal under the HB Act was determined 'on the papers' (i.e. a hearing was dispensed with, pursuant to s 50(2) of the NCAT Act), on 29 July 2024.

5. By its Substantive Decision, the Tribunal dismissed the Builder's application and made directions for the receipt of written submissions and evidence regarding the issue of the costs of the proceeding.

6. On 18 September 2024 (with the Reasons for the Costs Decision published on 20 September 2024), the Owner's application for her costs of the proceeding was also considered and determined on the papers (apparently again with the consent of the parties) after the Tribunal had received the parties' written submissions as to costs pursuant to the orders 2, 3, and 4 made on 29 July 2024.

7. In its Costs Decision, the Tribunal ordered the Builder to pay the Owner's costs of the proceeding including the Owner's costs on the indemnity basis from the date of correspondence containing a settlement offer, which was not accepted by the Builder.

8. On 21 August 2024, and within the time required under the Civil and Administrative Tribunal Rules 2014 NSW (the NCAT Rules) in cl 25(4)(c), the Builder appealed the Substantive Decision based upon alleged errors on questions of law.

9. The Tribunal's Costs Decision was published after the lodgement of the appeal. In its written submissions for the appeal dated 2 October 2024, the Builder appealed the Costs Decision published on 20 September 2024, noting that should the Builder be successful in its appeal from the Substantive Decision, it will be seeking that the costs orders of the Tribunal are reversed; but that in any event, the Builder's submission was that the Tribunal's discretion as to costs had miscarried and that no indemnity costs order should have been made.

10. For the reasons set out below, we have decided to dismiss the appeals from the Substantive Decision and the Costs Decision.

The Tribunal's Reason for the Substantive Decision

11. As indicated, the Substantive Decision was made on the papers. It appears that the parties agreed to the Tribunal dispensing with a hearing. A formal order to that effect (NCAT Act, s 50(2)) may have been made prior to 29 July 2024 but that is not apparent from the reasons in the Substantive Decision. In essence, there were agreed facts as per the statement dated 25 October 2023 of the Builder's managing director, Mr Steve Malesev.

12. In summary, the relevant agreed facts that emerge from Mr Malesev's statement, are:

13. On 4 May 2022, the Owner paid a non-refundable tender fee of $15,000, which amount was to be credited towards the Contract Price when the parties signed the Contract,

14. The price of the Contract signed on 23 June 2022 was $530,000 (the Contract Price),

15. The Contract Price and other moneys that become payable under the Contract were to be paid by the Owner in the manner and at the times stated in the Contract: cl 3.1,

*Rest of the document and Footnotes can be viewed at: (https://www.caselaw.nsw.gov.au/decision/193749bb2118fcd88dfd7407)

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