Paul Joseph Fitzsimon v Olympia Homes Pty Ltd ACN 600 940 243; Astrid Georgegina Scott v Paul Joseph Fitzsimon

Decision: Proceedings 2023/453561
1. Olympia Homes Pty Ltd is to pay Thelma Gene Thames and Paul Joseph Fitzsimon, collectively, restitution in the sum of $154,000.
2. Olympia Homes Pty Ltd is to pay Thelma Gene Thames and Paul Joseph Fitzsimon, collectively, pre-judgment interest upon the sum of $154,000 from 24 February 2020 to the date of judgment pursuant to s 100 of the Civil Procedure Act 2005 (NSW) and Practice Note No SC GEN 16.
3. Olympia Homes Pty Ltd is to pay Thelma Gene Thames and Paul Joseph Fitzsimon’s costs to be agreed or assessed.
Proceedings 2024/215224
1. Verdict and judgment for Astrid Georgegina Scott against Paul Joseph Fitzsimon, Thelma Gene Thames and Olympia Homes Pty Ltd.
2. Paul Joseph Fitzsimon, Thelma Gene Thames and Olympia Homes Pty Ltd are to pay to Astrid Georgegina Scott damages in the sum of $99,450.66.
3. Paul Joseph Fitzsimon, Thelma Gene Thames and Olympia Homes Pty Ltd are to pay to Astrid Georgegina Scott pre-judgment interest on the sum of $69,450.66 calculated from 24 February 2020 to the date of judgment pursuant to s 100 of the Civil Procedure Act 2005 (NSW) and Practice Note No SC GEN 16.
4. Paul Joseph Fitzsimon, Thelma Gene Thames and Olympia Homes Pty Ltd are to pay Astrid Georgegina Scott’s costs to be agreed or assessed.

Catchwords: TORTS — Private nuisance — Physical damage to property – interference with ordinary use of residential land - Damages
TORTS — Trespass — General principles — Damages – Home building works undertaken with unauthorised use being made of the adjoining house to perform the works and unauthorised work being undertaken in the roof space of the adjoining house. Timber frame installed in the roof space of the adjoining house without permission.
RESTITUTION — Mistake — Failure of consideration - Restitution of money paid

Legislation Cited: Civil Procedure Act 2005 (NSW)
Environmental Planning and Assessment Act 1979 (NSW)
Home Building Act 1989 (NSW), ss 4, 48O(1)(a), 48O(1)(c)

Cases Cited: Alcock v Wraith (1991) 59 BLR 16
Barker v R (1983) 47 ALR 1
Gales Holdings Pty Ltd v Tweed Shire Council (2013) 85 NSWLR 514
Hunt Leather Pty Ltd v Transport for NSW [2025] HCA 53
Redland City Council v Kozik [2024] HCA 7; (2024) 281 CLR 202
Torette House Pty Ltd v Berkman [1940] 62 CLR 637

Category: Principal judgment

Parties: Proceedings 2023/453561
Paul Joseph Fitzsimon (First Plaintiff)
Thelma Gene Thames (Second Plaintiff)
Olympia Homes Pty Ltd (First Defendant)
Astrid Georgegina Scott (Second Defendant)
Proceedings 2024/215224
Astrid Georgegina Scott (Plaintiff)
Paul Joseph Fitzsimon (First Defendant)
Thelma Gene Thames (Second Defendant)
Olympia Homes Pty Ltd (Third Defendant)

Representation: Counsel:
Proceedings 2023/453561
D P O’Connor (Plaintiffs)
C Stomo (First Defendant)
T Davie (Second Defendant)
Proceedings 2024/215224
T Davie (Plaintiff)
D P O’Connor (First and Second Defendants)
C Stomo (Third Defendant)
Solicitors:
Proceedings 2023/453561
Adams & Partners Lawyers (Plaintiffs)
Kedron Legal (First Defendant)
Sanford Legal (Second Defendant)
Proceedings 2024/215224
Sanford Legal (Plaintiff)
Adams & Partners Lawyers (First and Second Defendants)
Kedron Legal (Third Defendant)

File Number(s): 2023/453561
2024/215224

Publication restriction: Nil

JUDGMENT

1. This judgment deals with two actions which arise out of the same facts.

2. Ms Thelma Thames and Mr Paul Fitzsimon are the plaintiffs in action no 2023/00453561 against Olympia Homes Pty Ltd ACN 600 940 243 (‘Olympia’), a building company.

3. Ms Astrid Scott is the plaintiff in action no 2024/00215224 against Mr Fitzsimon, Ms Thames and Olympia.

4. Ms Thames and Mr Fitzsimon are the registered proprietors of a property in Bondi, which is number 45 in the street (‘No 45’), upon which there is a dwelling which shares a common wall with the dwelling sited on the adjacent land, which is number 43 in the street (‘No 43’). Ms Scott is the registered proprietor of No 43. There was a single roof over the two dwellings.

5. Mr Thames and Mr Fitzsimon entered into a contract with Olympia for the renovation of No 45 on or about 27 August 2018.

6. Olympia caused some building work to take place at No 45 pursuant to the contract. However, on 27 May 2019, Olympia served a notice on Mr Fitzsimon and Ms Thames alleging that they were in breach of contract and suspending the building works from 28 May 2019 until the breach was remedied.

7. On 6 February 2020, Ms Thames and Mr Fitzsimon served notice on Olympia alleging that Olympia was in breach of contract and terminating the contract.

8. In their statement of claim, Ms Thames and Mr Fitzsimon sue Olympia for breach of contract and seek damages, but this claim was not pursued at trial. They also seek restitution from Olympia of the difference between what they paid and the value of the work performed.

9. In her statement of claim, Ms Scott alleges that No 43 was damaged in the course of the building works carried out by Olympia. Ms Scott alleges that her use and enjoyment of No 43 was disturbed by the building works. Ms Scott alleges trespass and negligence against Mr Fitzsimon, Ms Thames and Olympia.

10. At trial, Ms Scott gave evidence and also relied on the evidence of Mr Craig Nisbett, a building consultant, who gave evidence concurrently with Mr Ken Winton, a building consultant engaged by Olympia.

11. Ms Thames and Mr Fitzsimon both gave evidence and also relied on the evidence of Mr David Madden, a quantity surveyor.

12. There is an order that the two sets of proceedings be heard together and that evidence in one be evidence in the other.

Facts

13. Many of the facts in the proceedings are not in dispute.

14. Ms Thames and Mr Fitzsimon became the owners of No 45 in 2005, and began living there straight away.

15. On 22 March 2018, Ms Thames and Mr Fitzsimon entered into an “Agreement for Building Design” with Advance Building Brokers Pty Ltd (“Advance”), pursuant to which Ms Thames and Mr Fitzsimon agreed to pay Advance $15,000 and Advance agreed to do the following:

Design Services

• Section 149

• Site Survey

• Building Designer site visit, appraisal and discussion

• Concept sketches

• Design Sketches til approved by you

• In depth Scope of Work, including detailed specifications

Development Application:

• Building plans ready for Council Submission

• Shadow Diagrams

• BASIX Certificate

• Statement of Environmental Effects

• All Council requirements for DA approval

• Submission to Council

Construction Certificate:

• Appoint Certifier (PCP or Council)

• Structural Engineering Plans

• Storm water Drainage Plans

• Construction noise management plan

• Sediment and erosion control plans

• Sydney Water Quick Check (Tap in)

• Traffic Control Plan [No]

• Other as specified by Council (DA Conditions)

• Submission to Certifier

16. The Agreement for Building Design was signed on behalf of Advance by Mr Antoun Chidiac, who had negotiated the agreement with Ms Thames and Mr Fitzsimon.

17. Mr Chidiac introduced Ms Thames and Mr Fitzsimon to Mr Sanel Etemovic and Mr Carlos Buono in March 2018. It was Ms Thames’ evidence that, during an inspection of No 43, Mr Etemovic and Mr Buono looked into the ceiling space, with a torch, via a manhole (Ms Thames CB p 1318). Mr Etemovic denies that he looked into the ceiling space at this meeting.

18. In the months following March 2018, Mr Chidiac negotiated the content of the scope of works with Ms Thames and Mr Fitzsimon. The final version of the scope of works was arrived at on 5 July 2018. The final scope of works included, under the heading “External Walls for First Floor Addition” the following:

Fire rated common wall as per BCA

19. The $15,000 fee provided for in the Agreement for Building Design was paid in full, with the last payment being made on 11 July 2018.

20. Mr Chidiac told Ms Thames and Mr Fitzsimon that he was going on holidays and referred them to Mr Etemovic. Ms Thames and Mr Fitzsimon began negotiating a building contract with Mr Etemovic. On 20 August 2018, Mr Etemovic gave Ms Thames and Mr Fitzsimon a copy of his business card, and they became aware for the first time that he was a director of Advance.

21. On 27 August 2018, Ms Thames and Mr Fitzsimon signed a residential building contract with Infinity Design & Construction Pty LTD ACN 600 940 243 (‘Infinity’) (‘the building contract’). The building contract was prepared by Infinity. Infinity changed its name to Olympia Homes Pty Ltd on 29 May 2019. I will refer to both Infinity and Olympia as ‘Olympia’.

22. The contract price was $311,190.00. The description of the works in Schedule 4 of the building contract simply referred to the scope of works referred to in [18], above.

23. The scope of works set out an extensive renovation, described both in a “short description of proposed works” and a seven page itemised list of works. The short description is as follows:

Demolish and remove part of existing roof and build Second floor addition (two bedrooms, bathroom, hallway, sitting area and stairwell). Second floor addition structure to be Timber frame for all walls, floor and roof. External walls finish to be cladding. Internal walls Gyprock. Roof covering Colourbond. New windows residential Aluminium. Floor covering to be carpet. Bathroom floor and wall tiles. New plumbing and electrical for all new work. Work to be done to ground floor: Demolish and relocate existing bathroom (new bathroom as per drawings).

Demolish and remove existing Laundry and toilet at back of the house and make good on walls and floors in that area. New Stairwell in the Lounge area. Paving area at back of the house approximately 6m x 4m. Side pergola approx. 4m x 2m. Replace existing rusted lintel bars from side of the house and make existing brick work good. New tiling for front porch and new paving’s to main entry from street to house. New Gutters and down pipes on side of the house. All bathroom tiles and PC items to be supplied by owner.

24. Exhibit TGT-1 to Ms Thames’ affidavit included a series of drafts of the scope of works, as well as the final scope of works. A draft version of the scope of works dated 12 April 2018, which is marked as superseded, has an annotation on it which Mr Etemovic said, in cross-examination, was in his handwriting. That same draft contains items added to the typed text in handwriting, including an addition to the list of items under the heading “External Walls for First Floor Addition”. That addition is:

● FIRE RATED COMMON WALL AS PER BCA (BRICK)

A line has been drawn from this addition to the words, in handwriting “TO BE DECIDED”.

On the last page of this draft scope of works, there is a handwritten heading “18-4-18 – SANEL” and then a list of items bracketed together with the words “ADD TO SCOPE”. The list of items includes “ADD FIRE RATED BRICK WALL BETWEEN PROPERTIES”.

25. As I have said, above, at [18], the final scope of works, which is dated 5 July 2018, includes, in typed words, under the heading “External Walls for First Floor Addition” the words:

● Fire rated common wall as per BCA

26. Mr Etemovic’s first name is Sanel. In cross-examination, he denied that he had made the changes to the draft scope of works, although he did identify his handwriting on the front page of the document. He continued to deny that he had inspected the roof space at the meeting in March 2018 with Mr Chidiac, Mr Buono and Ms Thames referred to at [17] above.

27. In his affidavit of 14 August 2025, Mr Etemovic said that the scope of works was “based on the architectural plans prepared by Carlos Buono dated 27 July 2018 (and later revised on 17 September 2018) … and the structural plans prepared by S. Polycarpou dated 20 May 2018…”.

28. Exhibit TGT-1 to the affidavit of Ms Thames includes, at p 259 (CB p 596), a plan by Carlos Buono which is a revision of drawing no 260-06 and is dated 17 September 2018. At the proposed second floor level for No 45, in what was the roof space, vertical double lines are shown at the boundary with No 43 and labelled “Fire Rated Wall to Later Details”. I understand this to indicate that a fire rated wall is to be constructed at the location indicated and that the specification for the wall would be agreed at a later date.

29. Mr Etemovic provided Ms Thames and Mr Fitzsimon with a set of plans on 4 September 2018. These plans are dated 27 July 2018 and drawing 260-06 shows a footing to roof ridge wall between No 45 and No 43 which is labelled “EXISTING BRICK FIRE RATED PARTY WALL”. The 17 September 2018 plan, of which Mr Etemovic was clearly aware, supersedes the 27 July 2018 plan and is consistent with the scope of works the subject of the contract.

30. In late October 2018, Mr Chidiac and Mr Etemovic advised Ms Thames and Mr Fitzsimon that they should move out of No 45 during the building works. A few weeks later, Mr Chidiac contacted Ms Thames and Mr Fitzsimon and told them that he was no longer part of the project. They communicated only with Mr Etemovic subsequently.

31. On about 31 October 2018, Mr Fitzsimon received an email, to which was attached a series of documents relevant to applying for a Complying Development Certificate, from Mr Andrew Soliman of Building Certifiers Pty Ltd (‘the certifier’). The email accompanying the documents said:

Hi see attached cdc approval, sign neighbour notification to be sent to 3 or 4 surrounding neighbours and oc package.

32. One of the documents attached to the email was a pro-forma “Notice to Neighbours – Demolition/Building Work about to commence”.

33. On 7 November 2018, Mr Soliman sent to Mr Fitzsimon, by email, a certificate of insurance for residential building work at No 45, dated 26 October 2018, issued in respect of “Second storey addition exterior walls in light weight with cladding finish with minor alteration to ground floor” to Mr Challita for $200,000.00. Ms Thames and Mr Fitzsimon had not been informed that the insurance for the works under the building contract would be taken out by Mr Challita. They had assumed that Olympia would take out the necessary insurance. Mr Fitzsimon said that he did not notice, at first, that the name of the person who had taken out the insurance was Mr Challita. He did notice that the insurance was not for the full amount of the contract, and he raised this with Mr Challita, who assured him that the insurance amount was adequate.

34. In her affidavit of 13 November 2024, Ms Scott says that Ms Thames and Mr Fitzsimon visited her and her husband, Mr Guy Shrosbree, at No 43 on 9 November 2018 and told them that they were about to begin a renovation involving adding bedrooms upstairs at No 45. This was the first time Ms Scott had been told about the renovation planned for No 45. No notification had been sent to her or her husband by the certifier or anyone else. In her affidavit of 28 August 2025, Ms Thames also recalls the meeting at No 43 on 9 November 2018 and confirms that the certifier did not notify No 43 or No 47 of the proposed development at No 45. Ms Thames and Mr Fitzsimon did not seek or obtain permission for the builders to gain access to No 43. Ms Scott and Mr Shrosbree asked to be given a copy of the proposal plans for No 45. These were not forthcoming from Ms Thames and Mr Fitzsimon.

35. Mr Paul Challita arrived at No 45 on 13 November 2018 to begin the building works. Ms Thames and Mr Fitzsimon moved into a rental property on the same day. Ms Thames and Mr Fitzsimon assumed that Mr Challita was an employee of Olympia and that the works were being performed under Olympia’s builders licence. Neither Mr Etemovic nor Mr Challita told them that he was not an employee of Olympia.

36. Mr Etemovic said, in his affidavit, that he subcontracted the works to GMC Projects Pty Ltd, a building company operated by Mr Challita. He said that he explained the subcontracting arrangement to Ms Thames and Mr Fitzsimon, and that they agreed to it. Ms Thames and Mr Fitzsimon say that they were never told that Mr Challita was a subcontractor.

37. Between 4 September 2018 and 24 June 2019, Ms Thames and Mr Fitzsimon paid Olympia $216,380.00 by way of deposit and progress payments under the building contract.

38. The final scope of works did not include three skylights and a wall hung toilet. Olympia insisted that these be paid for over and above the building contract price. Ms Thames and Mr Fitzsimon paid Olympia $3,300.00 for the skylights and $1,100.00 for the toilet.

39. Ms Thames and Mr Fitzsimon were made aware, shortly after the building works commenced, that Ms Scott and Mr Shrosbree were concerned about the works for the firewall in the ceiling space, the damage to No 43 and the trespass to their property by the builders. On 13 November 2018, Mr Shrosbree texted Ms Thames and Mr Fitzsimon saying that the roof on No 45’s side had been removed and the area covered with a tarpaulin which was flapping loudly in the wind, making a lot of noise. The noise was interfering with Ms Scott and Mr Shrosbree’s sleep, and Mr Shrosbree asked that the builders be instructed to secure it, noting that a storm was forecast for the following day.

40. On 14 November 2018, Mr Shrosbree again texted Ms Thames and Mr Fitzsimon to say that he had just come home to see two large holes and a long crack in the ceiling of No 43. He said that there was gyprock, plasterboard and roofing material on the floor in No 43. He asked to be informed of how Ms Thames and Mr Fitzsimon intended to repair the damage. In further text messages, Mr Shrosbree expressed concern about the integrity of the party walls and enquired as to what soundproofing was to be installed to protect his property from the noise of the new plumbing, stairs, floorboards and roof space. He asked for a copy of the plans. He noted that he had just received a “Notice of Application for CDC” even though the works had started. The two holes and the crack in the ceiling of No 43 can be clearly seen in the photographs in Exhibit AS1 to Ms Scott’s affidavit. The debris on the floor of No 43 can also be seen in photographs.

41. Ms Scott and Mr Shrosbree inspected the roof space in the evening of 14 November 2018. It was difficult for them to open the loft hatch because building materials were strewn on their side of the roof space, including on top of the hatch. They observed that a “new timber stud structure spanning the full height and width of the loft space” had been installed, near the boundary between the two houses, but resting entirely on No 43’s side of the boundary, and that beams and joists had been cut on No 43’s side. There are photographs of the new structure in Exhibit AS1, and I accept that it was erected on Ms Scott’s side of the boundary without any permission. The timber stud structure had been built on top of the original party wall between No 43 and No 45, which is a thick, brick wall which goes from ground level to ceiling level. The timber stud structure had been built on No 43’s side of the midline of the thick, brick party wall.

42. On 15 November 2018, just after 7am, Ms Scott told the tradesmen that they were not permitted to go on to No 43. In response, one of the tradesmen abused her in a vulgar and insulting way.

43. Mr Shrosbree telephoned Ms Thames shortly afterwards, on loudspeaker, in Ms Scott’s presence. Mr Shrosbree protested that the builders were building on No 43 without any agreement from him or Ms Scott. Ms Thames said, among other things, “We don’t need your permission”. Mr Shrosbree asked Mr Thames to get the tradesmen to stop work. Ms Thames hung up on him.

44. Mr Shrosbree arranged to meet Mr Etemovic on site at 9am. Ms Scott was present. She showed Mr Etemovic the damage to No 43, including holes in the hallway ceiling and cracks in the walls and cornices. He was dismissive. Ms Scott told Mr Etemovic about the mess the builders had made in the roof space of No 43, including leaving planks and pieces of wood, nails, screws, empty water bottles, crisp packets, sawdust, dirt and dust. Again, Mr Etemovic was dismissive, and claimed to have photographs of a pre-existing mess, even while he insisted that the roof space contained a pre-existing fire wall.

45. Ms Scott and Mr Shrosbree left Ms Thames and Mr Fitzsimon a voice mail asking that work cease and that builders stop coming onto No 43.

46. At the end of the same day, when Ms Scott came home from work, there was a three inch nail in the hallway of No 43. There was more cracking, more holes and a cracked internal downstairs window. Ms Scott went into the roof space and saw that old yellow insulation from the No 45 side had been moved to No 43’s side and was piled up with planks of wood, loose nails, dust, dirt and sawdust. A photograph of the roof space, showing this, is part of Exhibit AS1. A further photograph shows that a stud wall has been installed on No 43’s side of the boundary. Ms Scott noted that the new wall, on her side, had only 7mm of contact with the double brick party wall below because the beams had been cut too short. The timber stud wall had been attached to Ms Scott’s skylight shaft. The common ridge of the roof had been removed, the roof supports had been crudely cut and various stilts and attachments had been put in place, presumably to hold up the remaining roof. Ms Scott observed that the framing for the new upstairs room for No 45 encroached onto her property.

47. At 11pm on 15 November 2018, Ms Scott emailed the certifier and Mr Etemovic and told them about the damage to No 43 and requested an urgent site visit.

48. The next morning, 16 November 2018, at 6:45am, the workmen thumped on the party wall and shouted an obscene and vulgar “wake-up call” to Ms Scott and Mr Shrosbree. Ms Scott, in her affidavit of 13 November 2024 said, “This became an everyday occurrence over the next couple of weeks”. Ms Scott was at an advanced stage of pregnancy at this time and she and Mr Shrosbree also had their toddler living with them at No 43.

49. As they left the house to go to work on 16 November 2018, Mr Shrosbree asked Mr Fitzsimon to stop the building work so that he could see the plans for the party wall and get advice. Mr Fitzsimon refused to speak to him.

50. On Sunday 18 November 2018, Ms Scott and Mr Shrosbree met Mr Etemovic in the roof space. Ms Scott pointed out that the partition stud wall frame had been built on No 43’s side of the boundary. The boundary is the mid-point of the brick party wall at the level below the roof space. Ms Scott asked, again, for works to stop. Mr Etemovic agreed that the stud wall had been built incorrectly and would be removed.

51. On Tuesday 20 November 2018 the tradesmen did not remove the stud wall frame, but added more wood and attached plasterboard panels to each side of the wall, both of which were on No 43.

52. In his affidavit, Mr Etemovic said that the certifier inspected the framing in the roof “once it was completed”. The certifier’s inspection record was provided in the exhibit to Mr Etemovic’s affidavit, SE1. The inspection record is dated 20 November 2018. It records that the works are defective. It requires an engineer to certify the entire framework and the timber LVL (laminated veneer lumber) beams. It notes that the frame is incomplete. It also notes “party wall does not exist as per the approved plans & Dilapidation report”. The inspection record attaches eighteen pages of photographs of eleven separate faults in the frame. There are several breaches of applicable Australian Standards in the building of the frame.

53. In cross-examination, Mr Etemovic agreed that the timber framing was not on the plans the subject of Olympia’s contract with Ms Thames and Mr Fitzsimon, and nor was it included in the scope of works the subject of the contract. Mr Etemovic said that the timber frame was the work of Mr Challita, and that he, Mr Etemovic, was aware that Mr Challita was building it. Mr Etemovic agreed that Ms Thames and Mr Fitzsimon did not instruct him to install the timber frame. Mr Etemovic indicated that the timber frame was installed to hold the roof up (T 2 September 2025 p 66). The roof required support because the builder had removed a substantial portion of it on the No 45 side.

54. Ms Scott and Mr Shrosbree complained to Mr Etemovic, the certifier and to the Waverley Council. Ms Scott and Mr Shrosbree requested that work stop until issues concerning whether the works had the required authorisation and whether the works were encroaching upon and damaging No 43 were resolved. The Council referred Ms Scott and Mr Shrosbree to the Building Professionals Board (‘the Board’) to complain about the certifiers, who were not investigating Ms Scott and Mr Shrosbree’s concerns. The Board referred Ms Scott and Mr Shrosbree back to the Council.

55. The tarpaulin used to cover the part of the roof which had been removed by the builders frequently blew off, particularly at night. Ms Scott and Mr Shrosbree asked Mr Etemovic, Mr Challita and the certifiers to ensure that the area was watertight. Despite assurances, the area was not watertight, and water entered No 43 when it rained. The builders had broken roof tiles, which was one avenue of entry for rainwater. When the tarpaulin was not in place, water ran down the timber beams into No 43. Ms Scott and Mr Shrosbree used buckets to catch the water and were reluctant to leave their house during rainy weather for fear of damage. During rainy nights, they set an alarm to go off every three hours so that they could empty the buckets.

56. Possums and rats took to staying in the roof space, as it was often open to the sky.

57. Ms Thames and Mr Fitzsimon had a series of meetings with Mr Etemovic in relation to Ms Scott and Mr Shrosbree’s concerns. They understood that Mr Etemovic had met with Ms Scott and Mr Shrosbree several times to try to overcome their concerns.

58. On 24 November 2018, Ms Thames and Mr Fitzsimon, Mr Etemovic, Mr Challita, Ms Scott, Mr Shrosbree and Mr Sammy Mikhail of Building Certifiers met outside No 45 to discuss Ms Scott and Mr Shrosbree’s concerns. At this meeting, Mr Etemovic insisted that the roof space had a party wall in it when work began. This is clearly not true. Mr Etemovic says, in his affidavit, that it was discovered when demolition of the roof began that the party wall did not extend to the roof. He says, in his affidavit, “We advised the plaintiff of this as soon as it became apparent”. Work began on 13 November 2018. Clearly, however, Mr Etemovic knew when he signed the building contract on 27 August 2018 that the scope of work included the building of a fire rated common wall in the roof space.

59. During November 2018, the builders damaged more of the tiles in the roof on Ms Scott and Mr Shrosbree’s side.

60. On 22 November 2018, one of the builders made a vulgar and offensive sexual remark to Ms Scott, referencing lactation and her pregnancy. This was one of numerous vulgar, sexual and obscene comments and gestures Ms Scott endured from the builders. Ms Scott reported this conduct to the police and was told to report it whilst it was happening so that it could be dealt with “there and then”.

61. The persistent aggression and hostility directed to Ms Scott by the builders made her fearful of violence from them and she avoided entering and leaving her property as much as possible. Tradesmen often gathered out the front of No 45.

62. On Friday 23 November 2018, Ms Scott heard workmen walking on her roof all the way down to her gutters, and she could hear them breaking tiles as they moved. She shouted, “get off my property”. They replied “fuck off. Stop taking pictures, you bitch”. Ms Scott’s pictures of the two workmen on her roof on the opposite side of her house from No 45 are in evidence (AS1 p 46, CB 306). Later that day, Ms Scott received a visit from two policemen, who said that there had been a report that she had stolen a measuring tape from the workmen. She explained the situation.

63. On Monday 26 November 2018, Ms Scott took a photograph which showed how open to the elements the builders were leaving the roof space (CB p 308). The photograph shows a large portion of the roof open to the sky.

64. On 27 November 2018, rain was forecast. Mr Shrosbree texted Mr Fitzsimon. Mr Fitzsimon texted back to say that the builder said that the roof was watertight. When she returned home from work that night, Ms Scott saw three holes in her roof. Two had been made by the removal of roof tiles and one had been made at the roof apex area.

65. Rain soaked the internal structures of No 43’s roof on 28 November 2018. On 30 November 2018, new cracks appeared in the bedroom cornices and the bathroom cornice of No 43.

66. Mr Etemovic says, in his affidavit, that he formed the view that the fire wall in the roof could not be completed unless and until the owners of No 43 gave their permission for the tradesmen to work on the fire wall from the roof space in No 43. He says that Ms Thames and Mr Fitzsimon requested that works cease while the issue was resolved with the neighbours.

67. Ms Thames and Mr Fitzsimon had meetings with Mr Etemovic on 3 December 2018, 11 December 2018, 15 February 2019 and 11 March 2019, sometimes with other people present.

68. At the 11 December 2018 meeting, Mr Shrosbree’s account of the builder’s demolition of part of No 43 was raised. Ms Thames says that Mr Etemovic was specifically informed, at this meeting, that there was not a fire rated wall between No 45 and No 43 in the roof space, but that Mr Etemovic insisted that there was such a wall. It is clear from the photographs in Exhibit PJF-1 to Mr Fitzsimon’s affidavit of 24 December 2024 that, on 13 November 2018, there was no firewall or party wall in the roof space between No 45 and No 43. As I have said, there were plans and a scope of works which said that a firewall was required to be built and Mr Etemovic was aware of those documents well prior to 11 December 2018.

69. Mr Fitzsimon said that he raised with Mr Etemovic, at one of the meetings in December 2018, the fact that Mr Challita was named as the person who had taken out the home builders insurance. Mr Etemovic simply said that it was very unlikely they would be “calling on the insurance”.

70. Mr Fitzsimon visited No 45 frequently in the course of the building works being undertaken by Mr Challita, or Olympia. He noticed that plumbers, an electrician, renderers, roofers, “demolishers” and carpenters worked on the site. Mr Fitzsimon was not informed whether these tradespeople were employees of Olympia or Mr Challita or subcontractors.

71. In January 2019, Ms Thames and Mr Fitzsimon received a letter from lawyers for Ms Scott and Mr Shrosbree which provided them with a report dated 5 December 2018 from Adam Gillett of Gilcon Structural Engineers, and a report dated 17 December 2018 from Maurice Dawson of Law & Dawson, Consulting Structural and Civil Engineers. Prior to that, Ms Thames and Mr Fitzsimon had received a report of 17 November 2018 of Gilcon Structural and Civil Engineers setting out the damage to No 43 arising from the building works. Further correspondence ensued between the lawyers for Ms Scott and Mr Shrosbree and the lawyers for Ms Thames and Mr Fitzsimon.

72. On 26 February 2019, Ms Scott came home after being out to find a man-sized hole in her living room ceiling and debris on the floor. It appeared that a man had fallen through the ceiling into the living room and then walked out the front door. Debris and plasterboard were scattered throughout the living room and hallway. With the help of her father, Ms Scott fixed a plywood cover across the hole, which still remained at the date of her affidavit, which was 13 November 2024 (CB p 93).

73. Mr Etemovic says, in his affidavit, that the builders left the site in February 2019, intending to return once the dispute in relation to access to No 43 had been resolved.

74. By early 2019, the Board began an investigation into Ms Scott and Mr Shrosbree’s complaint. A Board staff member informed Ms Scott in a telephone conversation, in early 2019, that the building works at No 45 were not eligible for a Complying Development Certificate, and that development approval should have been applied for, on account of the need to build a party wall, which a certifier could not approve.

75. On 5 March 2019, Ms Scott noticed that the scaffolding was dismantled and placed on a truck and taken away. However, workmen were again on site at No 45 on 29 April 2019 and 2 May 2019.

76. Discussions between Ms Thames, Mr Fitzsimon and Mr Etemovic took place in March 2019 with respect to building works in No 45 which were either unfinished or defective.

77. On 31 March 2019, Ms Thames and Mr Fitzsimon made a complaint to NSW Fair Trading (‘Fair Trading’). Mr David Gardiner, a building inspector at Fair Trading, inspected No 45 and provided an inspection report. On 7 June 2019, Fair Trading issued a rectification order to Olympia requiring the rectification and completion of some of the building works by 4 July 2019. This date was extended to 30 July 2019 at the request of Olympia.

78. Mr Etemovic says that, on 27 May 2019, he issued a Notice of Suspension of Works to the plaintiff by post. He does not, however, have a copy of the Notice he says he sent, but he does have a copy of a draft Notice.

79. Builders attended No 45 sporadically in July 2019. Electrical wires were fitted to the timber stud wall on No 43’s side of the roof space.

80. Ms Scott and Mr Shrosbree continued to have ongoing problems with rats and possums in the roof space of No 43. On 1 August 2019, the living room lights and power points stopped working at No 43 on account of a possum family chewing No 43’s electrical wires.

81. In October 2019, Olympia and Mr Challita returned to No 45. Part of the framing of the roof was fixed and defective ceiling joists, which had been cut in the course of the building works, were strengthened with the use of brackets. Otherwise, Fair Trading’s rectification order was not complied with.

82. Ms Scott heard and saw removal vans and workers taking boxes, furniture and bags into No 45 in November 2019. From that day, she heard Mr Fitzsimon in No 45 and formed the view that he was again living in No 45 because she could hear him. She rarely saw Ms Thames and formed the view that Ms Thames was not living at No 45. At the date of swearing her affidavit, in November 2024, there was no sound separation between No 45 and No 43 so that Ms Scott could hear everything that happened in No 45, and could smell cigarette smoke whenever a cigarette was smoked at No 45. In her affidavit of 28 August 2025, Ms Thames denies that Mr Fitzsimon moved back in to No 45 in November 2019.

83. On 16 December 2019, Ms Thames and Mr Fitzsimon obtained an engineering report from Axis Structural Engineering in relation to No 45.

84. On 6 February 2020, the solicitor for Ms Thames and Mr Fitzsimon sent a letter to Olympia, protesting that the building work had stopped and giving notice of an intention to terminate unless work continued. Olympia replied on 14 February 2020 saying, among other things, in summary, that work could not continue in the absence of approval from Ms Scott for the builders to gain access to No 43. On 24 February 2020, the solicitor for Ms Thames and Mr Fitzsimon sent a notice of termination of the building contract.

85. Ms Scott heard workmen at No 45 on 20 January 2020. Rainwater leaked through her roof on 9 February 2020.

86. On 24 August 2020, Ms Thames and Mr Fitzsimon engaged Anax Co Pty Ltd (‘Anax’). In cross-examination, Ms Thames said that, prior to that time, they were waiting for Mr Etemovic to resume work (despite the termination of the building contract). Anax built the decks on the side and back of No 45 and replaced the flashings on the windows. Anax also built a Hebel panel wall in the roof space of No 45, but it had to be removed because it was not a compliant firewall. Anax subsequently repudiated the contract. Ms Thames and Mr Fitzsimon paid Anax $90,303.00 for the works it performed.

87. In about October 2020, Ms Thames and Mr Fitzsimon applied for a Building Certificate for the firewall. They became aware that it required development approval, and they engaged Little Developer to apply for development approval for the firewall in 2021. Subsequent enquiries from the Council required them to engage structural engineers, an architect and a project manager in relation to the application. In cross-examination, Ms Thames said that development approval had been granted in October 2022.

88. The lawyers for Ms Scott and the lawyers for Ms Thames and Mr Fitzsimon exchanged correspondence for several months in late 2020 and early 2021 with respect to proposed remedial works for the roof space and the conditions on which access could be granted for the builders to No 43. No agreement was reached.

89. On 19 February 2021, Ms Thames’ and Mr Fitzsimon’s solicitor wrote to Ms Scott and Mr Shrosbree’s solicitor saying that the wall would now be built wholly within No 45’s property “without further reference” to Ms Scott and Mr Shrosbree.

90. On 21 February 2021, Ms Scott found a red bucket in the roof space, on her side, containing human faeces and latex gloves. A photograph is included in Exhibit AS1. Following this, Ms Scott and Mr Shrosbree’s solicitor wrote to Ms Thames and Mr Fitzsimon’s solicitor saying that no consent was given for trespass over the boundary line by Ms Thames, Mr Fitzsimon or their agents and informing him of what Ms Scott had found in the roof space.

91. Mr Shrosbree died in March 2021.

92. Anax constructed the non-compliant Hebel panel wall in April 2021.

93. Ms Scott fell behind on the mortgage on No 43 following Mr Shrosbree’s death. In or around May 2021, she sought to refinance. However, she received a valuation which was $420,000 less than the purchase price she and Mr Shrosbree paid in March 2018. The valuation report said that the value reflected the condition of No 45. Ms Scott was placed in a position where she could neither refinance nor sell.

94. On 5 July 2021, Ms Scott saw that No 45’s ground floor ceilings and insulation had been removed. No 43’s roof space was then wide open to No 45’s ground floor. All noise, cigarette smoke and other odours generated at No 45 were perceived by the residents of No 43, namely Ms Scott and her two children.

95. Works continued in November 2021, including by trespass onto No 43. The Hebel panels were still in place, so this work was presumably undertaken by Anax.

96. Ms Thames says that she and Mr Fitzsimon moved back in to No 45 in December 2021. Ms Thames, in her affidavit dated 24 December 2024, says:

80. In or around December 2021, when we moved back to our Home in December 2021:

a. There were piles of rubbish and debris in the Home, including demolished bricks and rubble.

b. Asbestos sheeting from the roof was left in the backyard of the Home and it was not disposed of appropriately.

c. The Works are still incomplete, and some tiles were still on the wall, and some were broken.

d. Parts of the ceiling had been ripped out and we could see the Adjoining Property from inside our Home in the lounge room.

e. As the builder cut off parts of the ceiling from the corridor, bits and pieces of the Home occasionally fall off and spread around the house on windy days.

81. The four new windows upstairs installed by Olympia Homes in the Home were leaking and needed to be removed and the flashings redone properly and put back in to prevent future leakages. We learned that the keys to the windows were with Challita and to date they have not been provided to us and we are unable to lock the windows.

97. The Hebel panels were removed from the roof space of No 45 between 27 April 2022 and 3 May 2022.

98. On 19 April 2022, Ms Scott obtained a further valuation of No 43 for probate purposes. Whilst the valuation had increased, the valuer indicated that the encroachment and the condition of No 45 adversely affected the value of No 43.

99. On 1 August 2022, Ms Scott received a letter about a new development application for a firewall at No 45, which invited objections by 10 September 2022. Ms Scott noticed that the application had been submitted to Council on 8 July 2022, with plans.

100. Subsequently, correspondence was exchanged between the lawyers for the owners of No 45 and No 43 concerning Ms Scott giving access to her property for the purposes of a dilapidation report. She responded through her solicitor seeking a copy of all relevant plans and reports. At the date of her affidavit, 13 November 2024, there had been no reply to this request.

101. Enable Constructions Pty Ltd (‘Enable’) were engaged by Ms Thames and Mr Fitzsimon to complete the works and rectify defective work including the firewall. By 24 December 2024 (the date of Ms Thames’ affidavit), Ms Thames and Mr Fitzsimon had paid Enable $26,760.00. They had also incurred other costs in relation to the building project amounting to $14,593.00. At the date of trial, Enable’s engagement to complete the work was on-going.

102. On or about 24 May 2023, Ms Thames instructed her solicitor to investigate the licence held by Olympia. In the course of that investigation, the solicitor discovered that Olympia’s building licence was subject to a condition from 18 May 2018 to 21 May 2020 and the condition was:

Only for contracts not requiring insurance under the home compensation fund.

103. That condition was imposed on Olympia’s licence again on 23 August 2022 and removed again on 14 November 2022 (see CB p 437, Exhibit TGT-1 p 101).

104. All of the invoices provided to Ms Thames and Mr Fitzsimon by Olympia were provided during the period from 18 May 2018 to 21 May 2020 when Olympia’s licence was subject to a condition in the terms set out above at [102].

105. In his affidavit, Mr Etemovic did not disclose the limiting condition on Olympia’s licence. He said, in his affidavit:

15. At the time, Olympia usually took much larger projects that did not require Home Warranty Insurance. If Olympia would take on smaller jobs such as this job, my usual practice was the subcontract it out to other builders to carry out the construction. I would continue to liaise with the client, and the work would be carried out by the subcontractor.

16. In this particular case, I subcontracted the works out to GMC Projects Pty Ltd, which was a smaller building company owned and operated by Mr Paul Challita (Challita). The Homeowners Warranty Insurance was taken out in the name of Paul Challita. I do not recall the exact reason why the Home Warranty Insurance was taken out in this way.

Credibility

106. Much of Ms Scott’s evidence was substantiated by photographs, many of which were date stamped. Ms Scott’s evidence was consistent with the dates of various documents referred to and with the photographs and formed a coherent narrative, in the context of the whole of the evidence. Ms Scott gave her evidence in a considered and detailed manner, consistent with her affidavits. Where Ms Scott’s evidence is in conflict with the evidence of anyone else, I prefer the evidence of Ms Scott.

107. Mr Etemovic was not truthful in his affidavit evidence about why Olympia subcontracted the building work. He must have been aware of the condition on Olympia’s licence, and he must have been aware that the condition was relevant to the proceedings, but he omitted to mention it. Mr Etemovic was also untruthful in relation to whether or not there was an existing party wall, or firewall, in the roof space. Under cross-examination, Mr Etemovic was evasive, argumentative and contradictory and sought, on many occasions, to avoid giving answers to questions. Where Mr Etemovic’s evidence is in conflict with any other evidence, I prefer the other evidence.

108. Neither Mr Fitzsimon nor Ms Thames gave comprehensive evidence in their affidavits, especially in relation to Ms Scott’s allegations. In oral evidence, both Mr Fitzsimon and Ms Thames sought to avoid giving direct answers and sought to make points they wished to emphasise, rather than responding to questions about the facts. They sought to place blame on Ms Scott with no apparent insight into the untenable position that they had placed her in. Both Mr Fitzsimon and Ms Thames, in their affidavit and oral evidence, showed a single-minded determination to achieve their renovation regardless of Ms Scott’s rights and without proper attention to the requirements of the applicable laws. Where their evidence conflicts with Ms Scott’s I believe Ms Scott.

109. These findings as to credibility have been applied in determining the facts set out at [13] – [105], above.

Allegations against Olympia by Ms Thames and Mr Fitzsimon

Pleadings

110. It is claimed in Ms Thames and Mr Fitzsimon’s amended statement of claim that Olympia committed the following breaches of contract (in summary):

● sought progress payments in circumstances where the work the subject of the claim for a progress payment had not been completed.

● failed to complete the works within the twenty-six week period set out in the scope of works, to which the contract referred, or at all.

● purported to suspend the works when the circumstances permitting such suspension under the contract did not exist.

111. Ms Thames and Mr Fitzsimon, in their statement of claim, seek repayment from Olympia “on a quantum meruit basis”, implicitly on the grounds that the amounts sought from them by invoice from Olympia represented an overpayment for the value of the work performed by Olympia.

112. Ms Thames and Mr Fitzsimon seek the following remedies against Olympia (in summary):

● the difference between the amounts paid to the defendant by the plaintiffs and the amount the defendant is entitled to be paid under the contract, which is said to be $154,000 including GST.

● in the alternative, the difference between the amounts paid to the defendant by the plaintiffs and the value of work completed by the defendant, assessed on a quantum meruit basis, which is said to be $101,946.00.

● In the alternative, the difference between the total cost of completing the incomplete work over and above the balance of the contract price under the contract, which is said to be $151,746.00.

113. The statement of claim also included a claim for the cost of rectifying the defective works undertaken by Olympia, which was said to be $224,536.00, but this was not pressed at trial.

114. Ms Thames and Mr Fitzsimon also seek an order under s 48O(1)(a) of the Home Building Act 1989 (NSW) that Olympia indemnify them in respect of Ms Scott’s claim. The Home Building Act 1989 (NSW), in s 48O(1)(a), confers power on the Civil and Administrative Tribunal of New South Wales (‘NCAT’), established by the Civil and Administrative Tribunal Act 2013 (NSW), when it is hearing a building claim, and not the District Court.

115. Ms Thames and Mr Fitzsimon seek an order under S 48O(1)(c) of the Home Building Act 1989 (NSW) that Olympia perform whatever works are necessary to rectify the damage to No 43. Again, s 48O(1)(c) confers powers upon NCAT and not the District Court.

Ms Thames evidence concerning payments under the contract

116. Ms Thames, in her affidavit, set out in tables the schedule of payments provided for in the contract, the invoices rendered by Olympia and the payments made by her and Mr Fitzsimon. I accept the accuracy of the information in those tables. There is no evidence to the contrary. The tables are set out below:

117. The contract provides for the following progress payments:

| S/N | Stage | Amount (including GST) | | 1. | Deposit | $31,190.00 | | 2. | Commencement | $31,190.00 | | 3. | Demolition | $26,000.00 | | 4. | Completion of Floor Framing | $24,000.00 | | 5. | Completion of Walls and Roof Framing | $45,000.00 | | 6. | Completion of External Cladding | $22,000.00 | | 7. | Completion of Roof Covering | $25,000.00 | | 8. | Completion of Rough in services (Plumbing and Electrical) | $31,000.00 | | 9. | Completion of Gyprock | $25,000.00 | | 10. | Completion of Bathrooms | $20,000.00 | | 11. | Completion of Painting | $15,000.00 | | 12. | Final Completion | $15,810.00 | | Total | | $311,190.00 |

118. Olympia issued the following invoices:

| S/N | Date | Invoice number | Amount (including GST**)** | | 1. | 3 September 2018 | 39181 | $31,190.00 | | 2. | 12 November 2018 | 121118 | $31,190.00 | | 3. | 15 November 2018 | 151118 | $37,000.00 | | 4. | 22 November 2018 | 211118 | $67,000.00 | | 5. | 30 November 2018 | 301118 | $69,000.00 | | Total | | | $235,380.00 |

119. Ms Thames and Mr Fitzsimon made the following payments to Olympia

| S/N | Date | Description | Amount (including GST) | | 1. | 4 September 2018 | Deposit | $16,190.00 | | 2. | 5 September 2018 | Deposit | $15,000.00 | | 3. | 14 November 2018 | 1st Progress | $15,000.00 | | 4. | 15 November 2018 | 2nd Progress | $16,000.00 | | 5. | 16 November 2018 | 50% Demolition | $20,000.00 | | 6. | 19 November 2018 | 2nd Floor Demolition | $ 7,000.00 | | 7. | 26 November 2018 | 1st Framing | $20,000.00 | | 8. | 27 November 2018 | 2nd Framing | $20,000.00 | | 9. | 29 November 2018 | 3rd Framing | $20,000.00 | | 10. | 30 November 2018 | 4th Framing | $ 7,190.00 | | 11. | 6 December 2018 | Electrical and plumbing | $20,000.00 | | 12. | 31 December 2018 | Roofing | $20,000.00 | | 13. | 24 June 2019 | Electrical and Plumbing | $10,000.00 | | Total | | | $216,380.00 |

Expert Evidence relevant to Ms Thames’ and Mr Fitzsimon’s claim against Olympia

120. Mr Madden, a quantity surveyor, provided two reports, dated 9 November 2023 and 20 December 2024, which were tendered in Ms Thames’ and Mr Fitzsimon’s case.

121. Mr Madden inspected No 45 on 12 September 2023 and took photographs of the property, which were included in his first report.

122. In his reports, Mr Madden gave an account of his observations and compared the works which were required for Olympia to become entitled to each progress payment with the work that Olympia actually performed. Mr Madden assessed the value of the works performed by Olympia and compared those figures with the amounts charged for the works. Mr Madden concluded that Ms Thames and Mr Fitzsimon had been overcharged the sum of $154,000.00 by Olympia (see p 7 of Mr Madden’s second report at CB 1446).

123. Mr Winton, a building consultant, provided a report of 18 June 2025. Mr Winton inspected No 45 on 31 March 2025.

124. Mr Winton was at a disadvantage in assessing the degree to which Olympia had completed work because his inspection occurred subsequent to the works undertaken by Enable.

125. Mr Madden and Mr Winton gave evidence at the trial, concurrently. It was evident that Mr Madden had a thorough and coherent understanding of what the contract required by way of building works to entitle Olympia to each relevant progress payment (benchmarks) and had inspected the works and made a reasonable and rational assessment as to whether the works had reached each benchmark. His observations were supported by his photographs. Mr Winton, however, did not have a clear idea of what the contract required by way of benchmarks for progress payments and was not clear, either, what he was looking for at his inspection. Mr Winton did not raise any coherent rebuttal of Mr Madden’s approach, his reasoning or his conclusions. I accept Mr Madden’s evidence and prefer it where it differs from Mr Winton’s.

126. Ms Thames and Mr Fitzsimon have proven, on the balance of probabilities, that Olympia received progress payments from them in circumstances where the work the subject of the claims for progress payments had not been completed. I accept Mr Madden’s evidence that Ms Thames and Mr Fitzsimon paid $154,000.00 to Olympia in excess of what Olympia was entitled to under the contract for the work actually performed. I reject the suggestion that some of the work counted as incomplete was, in fact, “substantially complete”. There is simply no evidence to that effect.

127. I reject the suggestion that Ms Thames and Mr Fitzsimon could have mitigated their loss, but omitted to do so. A failure to mitigate was not pleaded and there is no evidence in relation to it. It is not clear how Olympia asserts that Ms Thames and Mr Fitzsimon could have mitigated their loss.

128. I find, in all of the circumstances, that the termination of the contract with Olympia by Ms Thames and Mr Fitzsimon was a lawful termination. It is plain that the dispute with Ms Scott over access to her property did not prevent Olympia carrying out a significant proportion of the works it was obliged to perform under the contract and that, from a practical point of view, work could have continued. There was no basis for the suspension of the works on that basis. Mr Etemovic admitted this in cross-examination and it is clearly so. However, the works could not have continued lawfully because Olympia’s builders licence did not permit it to perform home building works. Olympia entered the building contract contrary to s 4 of the Home Building Act 1989 (NSW).

129. Mr Madden and Mr Winton agreed an “escalation cost” arrived at by adding a percentage of the base cost, calculated by reference to the Building Price Index published by Rawlinsons in October 2023 in relation to the period between December 2022 to October 2023. The calculation yields an “escalation cost” of $12,798 (see CB p 1458).

130. I will not award “escalation costs”. Pre-judgment interest is adequate to address the impact of the passage of time on the value of the damages.

Restitution

131. The High Court recently considered restitution in Redland City Council v Kozik [2024] HCA 7; (2024) 281 CLR 202. The majority judgment was that of Gordon, Edelman and Steward JJ, with a dissenting judgment of Gaegler CJ and Jagot J, however, the principles of restitution were not the subject of disagreement.

132. Gaegler CJ and Jagot J said, at [66] – [74]:

66. The continuing vitality of the equitable foundations of the common law action for restitution was emphasised by Gibbs CJ in National Commercial Banking Corporation of Australia Ltd v Batty**[19]** and elaborated upon by Gummow J in Roxborough v Rothmans of Pall Mall Australia Ltd.[20] Gummow J referred in Roxborough to the development of the common law of restitution as an example of "the absorption or adoption by the common law of equitable notions".[21] Illustrations of that absorption or adoption of equitable notions into the common law of restitution given by Gummow J**[22]** included statements in the Supreme Court of the United States in Myers v Hurley Motor Co**[23]** and in Atlantic Coast Line Railroad Co v Florida.[24]

67. In Myers, Sutherland J said of the action for money had and received:[25]

"Such an action, though brought at law, is in its nature a substitute for a suit in equity; and it is to be determined by the application of equitable principles. In other words, the rights of the parties are to be determined as they would be upon a bill in equity. The defendant may rely upon any defense which shows that the plaintiff, in equity and good conscience is not entitled to recover in whole or in part."

68. In Atlantic Coast Line Railroad Co, with reference to Moses v Macferlan and Bize v Dickason, Cardozo J described a "cause of action for restitution" as "a type of the broader cause of action for money had and received, a remedy which is equitable in origin and function", and continued:[26]

"The claimant to prevail must show that the money was received in such circumstances that the possessor will give offense to equity and good conscience if permitted to retain it. The question no longer is whether the law would put him in possession of the money if the transaction were a new one. The question is whether the law will take it out of his possession after he has been able to collect it."

69. The stress Cardozo J placed in Atlantic Coast Line Railroad Co on the circumstances of the individual case determining whether the court would "lend its aid" or "stay its hand and leave the parties where it finds them"[27] has been pointed out in the United States to reflect central features of equity jurisdiction: the "ability to assess all relevant facts and circumstances and tailor appropriate relief on a case by case basis" and "to mould each decree to the necessities of the particular case", "the hallmarks of equity [having] long been flexibility and particularity".[28]

70. The centrality of these features of equity jurisdiction to the common law of restitution in Australia is apparent in Australia and New Zealand Banking Group Ltd v Westpac Banking Corporation ("ANZ v Westpac")[29] where Mason CJ, Wilson, Deane, Toohey and Gaudron JJ identified that "contemporary legal principles of restitution or unjust enrichment can be equated with seminal equitable notions of good conscience". In Equuscorp Pty Ltd v Haxton,[30] Gummow and Bell JJ also stressed the need for principled consideration of "the degree of flexibility in fashioning the just measure of recovery on an action such as that for money had and received, given that, while it is a legal action not an equitable suit, it is settled in Australia that the action is a liberal action in the nature of a bill in equity".[31]

71. These equitable foundations inform both the content of the concept of "unjust enrichment" as adapted into the common law of restitution in Australia in Pavey & Matthews Pty Ltd v Paul,[32] ANZ v Westpac**[33]** and David Securities Pty Ltd v Commonwealth Bank of Australia**[34]** and the analytical framework utilising that concept set out in ANZ v Westpac**[35]** and David Securities.[36]

72. Unjust enrichment was said in David Securities,[37] quoting Pavey & Matthews,[38] to constitute not "a definitive legal principle according to its own terms" but "a unifying legal concept which explains why the law recognizes, in a variety of distinct categories of case, an obligation on the part of a defendant to make fair and just restitution for a benefit derived at the expense of a plaintiff and which assists in the determination, by the ordinary processes of legal reasoning, of the question whether the law should, in justice, recognize such an obligation in a new or developing category of case". The concept of unjust enrichment has since been said to perform a "taxonomical function referring to categories of cases in which the law allows recovery by one person of a benefit retained by another",[39] without founding or reflecting any "all‑embracing theory of restitutionary rights and remedies".[40]

73. The analytical framework for a common law action for restitution set out in ANZ v Westpac and refined in David Securities involves a two‑stage inquiry into the entitlement of a plaintiff to recover from a defendant an amount of money paid by the plaintiff to the defendant. At the first stage, it is sufficient to give rise to a prima facie entitlement to restitution that the plaintiff point to a recognised "qualifying or vitiating factor", such as mistake or duress, having operated on the making of the payment.[41] At the second stage, it is open to a defendant to displace the prima facie entitlement of the plaintiff by pointing to "circumstances which the law recognizes would make an order for restitution unjust".[42] For that purpose, "the recipient of a payment, which is sought to be recovered on the ground of unjust enrichment, is entitled to raise by way of answer any matter or circumstance which shows that his or her receipt (or retention) of the payment is not unjust".[43]

74. This analytical framework accordingly draws a clear distinction between a specific qualifying or vitiating factor giving rise to the prima facie entitlement to restitution and the circumstances which may enable a "defence" to be established. ANZ v Westpac and David Securities provide no reason for considering that the range of circumstances which may enable a defence to be established to the whole or some part of a prima facie entitlement to restitution should be narrowly confined. The equitable underpinning of the common law action for restitution provides every reason for considering that it should not.

133. Gordon, Edelman and Steward JJ said, at [183] – [185]:

Mistake and failure of consideration as grounds for restitution

183. In Farah Constructions Pty Ltd v Say-Dee Pty Ltd,[179] this Court said that restitutionary recovery for unjust enrichment "depends on the existence of a qualifying or vitiating factor falling into some particular category", giving examples of such factors that included mistake. Another such factor is failure of consideration. The language of failure of consideration is difficult. As Gummow J has observed, "consideration" is a word with different meanings in different contexts.[180] In the law of contract, consideration is generally any act (including a promise), advantage conferred, or detriment suffered that is "a quid pro quo" for another's act, advantage conferred or detriment suffered.[181] In the law of trusts, family relationships were described as "good consideration".[182] In the law of unjust enrichment, where "consideration" is concerned with a reason for a transaction, the concept has another, quite different, meaning.[183] It means a "basis",[184] "purpose",[185] or "condition"[186] for a transaction by which one party confers a benefit upon another. That basis, purpose, or condition for the transaction might be a factual or legal state of affairs.

184. The basis of a transaction might fail immediately at the time of the payment or conferral of the benefit, such as in cases of payments described as being made for an "absence of consideration",[187] "no consideration",[188] or "without" consideration if a basis for the payment was the enforceability of promissory obligations, some or all of which were void.[189] Or the basis might fail subsequent to the time of payment, such as where a basis for a payment is later performance of an obligation but that obligation will not be performed.[190]

185. Where the transaction is a contract, a basis that fails need not be an express or implied promise in the contract; it can be "an event or a state of affairs that was not promised".[191] Of course, the transaction might not be a contract between the parties at all.[192] And the benefit conferred might take different forms. The benefit conferred on another by a transaction upon a basis that fails might be the payment of money.[193] It might be the performance of a service.[194] Or it might be the provision of goods. In each case, the basis, purpose, or condition upon which the benefit is conferred is determined objectively, not according to some subjective uncommunicated belief of either party.[195] The objective basis is therefore independent of mistakes of fact or law as the reason for recovery of those benefits conferred upon another party which the other has no right to retain.

134. Olympia issued invoices in circumstances where the works the subject of the invoices had not been substantially completed, as required before a progress payment could be claimed. Ms Thames and Mr Fitzsimon overpaid, mistakenly believing that the work had been done. There has also been a failure of consideration, in that Olympia had not, at the time that the invoices were issued and paid, substantially completed all of the work to which they purportedly related, and nor has Olympia completed that work subsequently.

135. Ms Thames and Mr Fitzsimon are entitled to an order for restitution in the sum of $154,000.

Ms Scott’s claim in trespass and nuisance against Ms Thames, Mr Fitzsimon and Olympia

Pleadings

136. In her statement of claim, Ms Scott pleads that the carrying out of the works disturbed her use and enjoyment of No 43. She alleges that the carrying out of the works caused noise, vibration, debris, dust and damage. The damage to No 43 which has been established on the evidence, is the following:

137. Removal of common ceiling joists, common collar ties, rafters and common ridge board,

138. The cutting back of the roof frame, ceiling and rafters,

139. Cracking between the ceiling cornice and walls,

140. Cracking in the walls to the front rooms,

141. Cracking to indoor highlight window glass panels and an external window panel,

142. Holes in the hallway and living room ceilings, with chipboard and plaster falling all over the floor,

143. Debris including sawdust, wood bits, nails and mortar and other mess in the roof space of No 43 and falling into the lower part of the house, requiring cleaning on many occasions,

144. The splitting of the cornice in the kitchen,

145. Cracking along the cornice in the front bedroom,

146. Boundary encroachment,

147. Terracotta roof tiles broken and/or removed,

148. General roof damage,

149. Damp and water drainage,

150. Damage to air conditioning and ducting in the roof void,

151. Damage to the skylight shaft and,

152. Movement of bathroom tiles.

153. Ms Scott further alleges that, in the course of the building works, Olympia entered her property to construct a timber stud wall and struts throughout to support the roof without her consent and approval. She alleges that these actions were “authorised and/or approved” by Ms Thames and Mr Fitzsimon.

154. Ms Scott pleads that these matters constitute trespass and nuisance on the part of Ms Thames, Mr Fitzsimon and Olympia.

Trespass

139. An owner of land has the right to the exclusive use and occupation of their land. A physical intrusion onto a person’s land without either permission, (express or implied) or a statutory or other lawful right to intrude, constitutes trespass (see Barker v R (1983) 47 ALR 1 at p16). In the present case, it is clear that Ms Scott expressly told Ms Thames and Mr Fitzsimon, and various of the tradesmen, that she did not give permission for access to be taken to her property in connection with the building works at No 45. In defiance of her refusal to grant permission, tradesmen engaged to perform the works the subject of the contract between Ms Thames, Mr Fitzsimon and Olympia nonetheless entered No 43 on numerous occasions and caused damage (see above at [39] – [85] and [136]). In addition, a structure was constructed, namely a timber frame, which intruded 300mm into No 43 for the length of the roof space, thus encroaching into Ms Scott’s property. This, also, was in defiance of Ms Scott’s clearly stated objection to the tradesmen going onto her property. It is an on-going trespass. The incidents of trespass did not cease and were not remedied when Ms Scott protested. Significant damage was caused to Ms Scott’s property in the course of the series of trespasses.

140. Olympia is liable to Ms Scott in trespass. Ms Scott repeatedly told Mr Etemovic that he did not have her permission to have the builders he had sub-contracted to perform the work Olympia had contractually undertaken to perform gain access to her property at No 43. He continuously allowed them to do so. Ms Scott showed Mr Etemovic the stud wall frame that the builders Olympia had sub-contracted to had erected on her property. He did not remove it. Instead, the builders added to it.

141. Ms Thames and Mr Fitzsimon are also liable to Ms Scott in trespass. As I have said, they were informed continuously of Ms Scott’s concerns about the tradesmen who were performing building work for them gaining access to her property against her express prohibition and they refused to do anything about it, implicitly encouraging it to continue for their benefit at Ms Scott’s expense. They were told about their builders having built the stud wall frame on Ms Scott’s side of the boundary and, again, they took no steps to remedy the situation. As I have said, this is an on-going trespass.

Nuisance

142. In Gales Holdings Pty Ltd v Tweed Shire Council (2013) 85 NSWLR 514, (‘Gales Holdings’) Emmett J summarised the elements of the tort of nuisance at [131] – [132]:

131 A nuisance is either a continuous or recurrent state of affairs. An occupier of land will be liable for continuing a nuisance if, with knowledge or presumed knowledge of the state of affairs, the occupier fails to take reasonable steps to bring it to an end despite having had ample time to do so (Hargrave v Goldman [1963] HCA 56; 110 CLR 40 at 59-61). There will be nuisance if a state of affairs created, adopted or continued by an owner or occupier of land harms another person’s enjoyment of land occupied or owned by that other person, unless the first person’s conduct involves no more than the reasonable and convenient use of its own land (Hargrave v Goldman at 62).

132 That is to say, nuisance is a wrongful interference with another’s enjoyment of land by the use of other land occupied or owned by the alleged wrongdoer. However, an owner or occupier of land is not an insurer. There must be more than mere harm being done to another’s enjoyment of land. The harm must be caused by the alleged wrongdoer’s use of its own land. The word use connotes that a degree of personal responsibility is usually required, even though a deliberate or negligent act is not. A deliberate or negligent act will however be sufficient. A balance must be maintained between an owner or occupier’s right to do what it likes with its land and a neighbour’s right not to be interfered with. The proper test to apply in most cases is what is reasonable, according to the ordinary usages of a particular society. While negligence is not essential, fault of some kind is almost always necessary (Elston v Dore [1982] HCA 71; 149 CLR 480 at 487-488).

143. In Hunt Leather Pty Ltd v Transport for NSW [2025] HCA 53 the High Court considered the tort of private nuisance. Four separate judgments were delivered, but the outcome was unanimous. Gordon and Edelman JJ set out the current law of private nuisance in detail, and said:

[95] From the perspective of a plaintiff, it has been established since Walter v Selfe that a claim for interference with the plaintiff’s right to land can only be brought for private nuisance if there is “material discomfort and annoyance for the ordinary purposes of life to a [person’s] house or ... property”. That principle, also well recognised in Australia, requires for a claim for private nuisance that a plaintiff establish a substantial interference with the plaintiff’s enjoyment of land for purposes that are ordinary, in the sense that the purposes are consistent with the reasonable expectations of the locality as to the use of that land.

[96] From the inception of the modern tort of private nuisance, therefore, the starting point has been that the action requires a substantial interference with the plaintiff’s ordinary use of land. Once this has been proved, the focus shifts to whether the defendant has acted with “any lawful ground of justification or excuse”.

The defendant’s substantial interference must be one that is not ordinary or not convenient

[97] If a defendant causes a substantial interference with a plaintiff’s enjoyment of land for ordinary purposes, the defendant may have a lawful ground of justification or excuse in an action for private nuisance if they establish that they were using their land for a common and ordinary purpose, by means that involved it being “conveniently done” in the sense of using means that reasonably minimised the extent of the interference.

…

[107] The identification of whether a purpose is common and ordinary should be made at the proper level of generality by reference to reasonable expectations based upon what is common and ordinary in a locality. The exercise of identifying the purpose at the proper level of generality can sometimes be finely balanced but it will be guided by the conduct that is said to be the infringement.

…

(iii) The meaning of “conveniently done”

[111] Even if a defendant who causes a substantial interference with a plaintiff’s enjoyment of land for ordinary purposes does so by using their land in a common and ordinary way, the defendant will still commit a nuisance unless the defendant establishes that they have used their land by actions that Bramwell B described as “conveniently done”. Consistently with the treatment by Bramwell B of this aspect of the tort of private nuisance as a lawful ground of “justif[ication] or excuse”, it has been held that the defendant bears the onus of proving that their use of land which causes such interference is “conveniently done”. Of course, a defendant does not bear an impossible onus of negating every imaginable allegation that the means adopted for the use of land were not conveniently done. A plaintiff bears an evidentiary onus to identify the respects in which the defendant’s use of land is not conveniently done.

144. On the basis of the evidence of Ms Scott, I find that the building works undertaken by Olympia under its contract with Ms Thames and Mr Fitzsimon, through a subcontractor, constituted a substantial interference with Ms Scott’s ordinary use of her property, No 43, for residential purposes. Noise, odours, dust and building materials were transferred from No 45 to No 43 in the face of Ms Scott’s unambiguous protests. The roof space at No 43 was used for storage and littering in association with the building works at No 45. The roof space was left open by the builders, and roof tiles were damaged and removed, which allowed the ingress of storm water into No 43 with resultant cracking to the building fabric. Ms Thames, Mr Fitzsimon and Mr Etemovic were well informed about the substantial interference with Ms Scott’s use of her land throughout the period of time within which it was occurring.

145. Although home building work may sometimes be an ordinary purpose of the use of residential property, in this case it was not such a purpose, because the building works were not, at any relevant time, approved in accordance with the Environmental Planning and Assessment Act 1979 (NSW) and the building works were not, therefore, being undertaken in accordance with the law. This is contrary to the reasonable expectations of home owners in Sydney, including Bondi. The building works were also being undertaken by means which included the periodic use of Ms Scott’s property, including her roof space and her roof, in circumstances where she had expressly and clearly prohibited such use of her property. This is also not a feature of an ordinary purpose of a residential use of land. In addition, Olympia’s builders licence did not permit it to undertake the works. An unlicensed builder was undertaking unapproved home building works, partly on land which was not the subject of its contract.

146. The building works were not “conveniently done”. An assessment of whether an activity on land is “conveniently done” involves the consideration of the convenience of the owners of both of the pieces of land in question. Ms Scott has amply and comprehensively demonstrated that the building work was undertaken with no consideration for her convenience, her right to use her own property for residential purposes or her safety and well-being. The builders made use of her property as they pleased, abused her while doing so and causing damage to her house. They violated her privacy and security. Ms Thames and Mr Fitzsimon were made aware of Ms Scott’s discomfort and distress at the noise, odours, dust, ingress of building materials, littering, ingress of water and damage to ceilings, cornices, windows and roof tiles and chose to do nothing to stop the building works or change the manner of their execution. They chose to have the works continue in the face of Ms Scott’s protests.

147. Olympia, Ms Thames and Mr Fitzsimon are liable to Ms Scott in nuisance. At the relevant time, they were the joint occupiers of No 45 and Ms Thames and Mr Fitzsimon were the owners of No 45.

148. It is no answer, on the part of Ms Thames and Mr Fitzsimon, to argue that Mr Etemovic, or Mr Challita, bears the liability, either in trespass or in nuisance. The work was being done at Ms Thames and Mr Fitzsimon’s behest, under a contract with them, on their land. It was for their benefit and for the benefit of their property. They were fully informed at all times of the trespass and the nuisance, but they chose not to stop the works or address the trespass or the nuisance even though it was within their power to do so (see Torette House Pty Ltd v Berkman [1940] 62 CLR 637; Alcock v Wraith (1991) 59 BLR 16).

Expert evidence

149. Mr Nisbett provided two reports, dated 13 February 2024 and 18 November 2024 and gave oral evidence in Ms Scott’s case. Mr Winton provided a report dated 18 June 2025 and gave oral evidence concurrently with Mr Nisbett.

150. Mr Nisbett inspected No 43 at 12:30 pm on 24 January 2024. He inspected the interior of the house and the roof cavity area. He took photographs, which are attached to his first report.

151. Based upon his observations, Mr Nisbett arrived at a scope of works to rectify the damage caused to No 43 by the builders engaged to perform the building work at No 45.

152. In his second report, Mr Nisbett recorded the following in relation to the roof:

153. The builder has constructed timber floor framing and a timber wall frame for No 45 on the common wall which ends at the ceiling of the lower level of the houses.

154. Prior to the building work, the timber roof frame members, being the timber ridge board, timber collar ties, timber ceiling joists and ceiling hanging beams, were shared by No 43 and No 45.

155. The ceiling joists have been cut with only about 20mm bearing on the common wall.

156. The common ridge board, collar ties and rafters have been cut through at the alignment of the common wall.

157. The existing roof timber rafters, ridge board and collar ties are supported by a timber frame wall, constructed by the builders, running parallel about 300mm in from the common wall, supported by the timber ceiling joists within the roof space of No 43.

158. The supporting frame wall built by the builders has bracing timbers connected back to the existing ceiling joists within the roof space of No 43.

159. The builders have installed a new ceiling hanging beam over the existing ceiling joists of No 43.

160. The first floor addition for No 45, being the floor joist and wall frame installed by the builders on the common wall encroaches across the centreline of the brick party wall, which can be assumed to be the boundary between No 43 and No 45. The addition to No 45 has been built higher than the original ridge line and forward of the front existing roof hip line.

161. The ceiling insulation batts have been displaced and are covered in sawdust, timber, offcuts and nails.

162. The air conditioning ducting has been crushed in areas in No 43’s roof space.

163. Mr Nisbett said, in his second report, that the works to support No 43’s roof were inadequate and defective and did not provide adequate support.

164. Mr Nisbett said that the owners of No 45 should demolish the building additions in the roof space which were constructed without approval. He said that the following works would then be required to rectify the roof area (CB p 132):

a. Remove and dispose of existing frame wall and timber props which are temporarily supporting the roof frame of No 43.

b. Remove and replace the existing air-conditioning ductwork.

c. Remove and dispose of ceiling insulation batts and remove sawdust, timber offcuts, nails etc by mechanical vacuum cleaning of no. 43 ceiling area.

d. Supply and install new R3 insulation ceiling batts to No. 43.

e. Supply and install a fish plate to support the ends of the existing joists at the party wall.

f. Supply and install a timber frame on number 43 side of the Common wall to support the existing roof frame of number 43.

g. Fix the existing Ridge board, collar ties and rafters to the new timber frame support wall.

h. Repair and replace any damaged or shifted roof tiles to the exterior of No 43 existing roof on completion.

i. Remove and dispose of any building debris.

155. Mr Nisbett provides a detailed costing of his scope of works at Appendix A of his second report. The costs are based on Rawlinsons. The cost of the roof works is $33,991.40 plus builder’s margin of $10,197.42 and GST of $4,418.88, giving a total of $48,607.70.

156. In relation to the interior of No 43, Mr Nisbett observed the following (in summary):

157. In the family/kitchen room the plasterboard ceiling adjacent to the chimney was damaged, apparently from a tradesperson walking or falling on the ceiling lining. The plasterboard ceiling is punctured adjacent to the party wall. The joint between the kitchen cornices and the plasterboard ceiling is cracked.

158. In the bathroom, there is cracking to the cornice mitre joints and the cornice to ceiling joint. There are cracks between the cornice and the wall tiles. The grout is cracked and loose to the wall tiles adjacent to the cornices.

159. In the hallway, there is cracking to the mitre joints and cornice to ceiling joint. There are hairline cracks to the common wall plaster.

160. In bedroom 3, the owner of No 43 has repainted the room, including the sealing of the joints between the cornice and the ceiling linings so as to prevent dust continually falling into this room, which is her baby’s room. There is, however still cracked glass to the internal door Highlight window over the door to the room.

161. In bedroom 2, the window is cracked. The cornice mitre joints and cornice to ceiling joint are cracked. There are hairline cracks in the walls.

162. In bedroom 1, there is cracked glass to the internal door Highlight window. There is cracking to the cornice mitre joints and cornice to ceiling joints. The ceiling plaster is damaged.

163. In Mr Nisbett’s opinion, the damage he observed was caused by movement and vibration, and possibly additional weight forced onto the ceiling frame and linings in the course of the building works carried on for No 45 and on the existing roof and ceiling structure of No 43.

164. Mr Nisbett formulated the following scope of works for the interior of No 43 to rectify the damage caused by the builders:

a. Move furniture and protect floor coverings

b. Remove loose plaster and replaster holes, cracks and sand ready for painting

c. Supply and apply undercoats and finishing paints to affected walls and ceilings

d. Re-grout wall tiles to bathroom

e. Remove and replace cracked glass to bedroom 2 window

f. Remove and replace cracked glass to bedroom 1 and 3 internal door highlight windows.

g. Clean interior of dwelling and remove building debris on completion.

159. Mr Nisbett costed this work at $14,575.50 plus builder’s margin of $4,372.65 and GST of $1,894.81, giving a total of $20,842.96.

160. Mr Nisbett observed that the additions to No 45 have been built higher than the existing ridge line and forward of the front existing roof hip line which is not in compliance with the DA 294/2022 drawings No 6 East – front elevation.

161. In his report, Mr Winton disagrees with Mr Nisbett’s report, simply saying that it contradicts another report, though he does not specify in what respect. He did not provide any scope of work or costing of his own.

162. In the joint report, Mr Winton appeared to approach the matter as if it were a claim for defective building works, saying that the works were not complete. This is not the appropriate or applicable approach.

163. Mr Winton, in the joint report, simply disagrees with Mr Nisbett’s costings in relation to the roof. He does not provide any alternative costings.

164. In the joint report, Mr Winton agrees that the damage to the interior of No 43 has been caused by the builder’s work, but does not agree with the costing. He characterises the painting work as requiring only patch painting or painting to the nearest architectural break, and estimates that it would take two painters one day, that is, 16 hours. He costs the painting works at $1,823, including $175 for materials. I prefer and accept Mr Nisbett’s estimate in respect of the painting as it is more realistic, given the extent and spread of the damage throughout the house. Mr Winton did not believe that it was necessary to include cleaning or to hire a 2m² rubbish bin. He costed the total remediation works at $2,795.50. I reject his costing and the reasoning underlying it. He has unreasonably minimised the extent of the damage and does not provide adequately for its remediation.

165. I accept Mr Nisbett’s opinion and costing.

166. Ms Scott is entitled to damages in the sum of $69,450.66 on account of the physical damage caused to No 43 by the trespass and nuisance for which Olympia, Ms Thames and Mr Fitzsimon are liable.

167. I will also award Ms Scott general damages in the sum of $30,000 for general damages for loss of amenity. The trespass and nuisance have caused her very significant inconvenience and distress, aggravated by her appalling treatment by some of the workmen on site and the callous indifference to her distress repeatedly shown by Ms Thames and Mr Fitzsimon. The builders destroyed the structural integrity of her roof without permission or consultation and have substituted an inadequate support, causing her justified anxiety. I take into account the extensive period for which the trespass has continued. I take into account the pests and vermin intrusion to which she has been subject on account of the damage caused to her roof. I take into account the intrusion into her daily life of the dust, noise and odours she recounts experiencing as a result of the removal, periodically, of barriers between the living space of No 45 and the living space occupied at No 43 by her and her children. This has been an egregious interference in Ms Scott’s use of her home.

Indemnification

168. As I have said, Ms Thames and Mr Fitzsimon sought an order that they be indemnified by Olympia in relation to Ms Scott’s claim under s 48O of the Home Building Act 1989 (NSW). However, s 48O is not applicable because it gives power to NCAT when it is determining a building claim, and not to the District Court. It is not applicable to a case in tort in any event.

169. The contract between Ms Thames and Mr Fitzsimon and Olympia contains an indemnity clause, which is clause 37.1, which says:

37.1 Except to the extent limited by another provision of this contract, each party indemnifies the other against:

(a) loss of or damage to property (other than the building works); and

(b) claims in respect of personal injury or death,

arising out of or as a consequence of a cause or event at that party’s risk.

170. None of the parties to the contract sought indemnity under this clause, presumably because, in the present circumstances, it would be pointless, given that all parties to the contract may claim indemnity under the clause.

171. Ms Thames, Mr Fitzsimon and Olympia will be jointly and severally liable for the damages awarded to Ms Scott.

Orders

172. The following orders will issue in action no 2023/453561:

173. Olympia Homes Pty Ltd is to pay Thelma Gene Thames and Paul Joseph Fitzsimon, collectively, restitution in the sum of $154,000.

174. Olympia Homes Pty Ltd is to pay Thelma Gene Thames and Paul Joseph Fitzsimon, collectively, pre-judgment interest upon the sum of $154,000 from 24 February 2020 to the date of judgment pursuant to s 100 of the Civil Procedure Act 2005 (NSW) and Practice Note No SC GEN 16.

175. Olympia Homes Pty Ltd is to pay Thelma Gene Thames and Paul Joseph Fitzsimon’s costs to be agreed or assessed.

176. The following orders will issue in action no 2024/215224:

177. Verdict and judgment for Astrid Georgegina Scott against Paul Joseph Fitzsimon, Thelma Gene Thames and Olympia Homes Pty Ltd.

178. Paul Joseph Fitzsimon, Thelma Gene Thames and Olympia Homes Pty Ltd are to pay to Astrid Georgegina Scott damages in the sum of $99,450.66.

179. Paul Joseph Fitzsimon, Thelma Gene Thames and Olympia Homes Pty Ltd are to pay to Astrid Georgegina Scott pre-judgment interest on the sum of $69,450.66 calculated from 24 February 2020 to the date of judgment pursuant to s 100 of the Civil Procedure Act 2005 (NSW) and Practice Note No SC GEN 16.

180. Paul Joseph Fitzsimon, Thelma Gene Thames and Olympia Homes Pty Ltd are to pay Astrid Georgegina Scott’s costs to be agreed or assessed.

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