Deacon v National Strategic Constructions Pty Ltd; National Strategic Constructions Pty Ltd v Deacon [2017] NSWCATAP 185

Deacon v National Strategic Constructions Pty Ltd; National Strategic Constructions Pty Ltd v Deacon [2017] NSWCATAP 185

The Tribunal erred in law by misapplying the damages principle in Bellgrove v Eldridge, accepting the homeowner's expert's method but not his quantum for the concrete slab rectification in favour of a different, rejected method's quantum. The order was varied to award the homeowner the actual cost of the accepted rectification method. No error of law was found regarding accommodation costs, contract termination, interest, or negative variations, and other grounds of appeal were dismissed.

Jurisdiction
Australia
Judgment Date
07 September 2017
Procedural Posture
Appeal / Appeal Decision After Hearing From Both Parties
Outcome
Appeal allowed in part (in AP 16/52241; homeowner's appeal); builder's appeal dismissed (AP 16/53370)
Legal Topics
['assessment of Damages' 'home Building Disputes' 'rectification Costs' 'estoppel' 'waiver' 'contract Termination' 'negative Variations' 'statutory Warranties' 'appeals Procedure']
['building and Construction' 'contract Law' 'consumer Law'] ['assessment of Damages' 'home Building Disputes' 'rectification Costs' 'estoppel' 'waiver' 'contract Termination' 'negative Variations' 'statutory Warranties' 'appeals Procedure']

Case Brief

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Procedural Posture

Appeal / Appeal Decision After Hearing From Both Parties

Legal Issues

  1. 1 ['Whether the Tribunal erred in assessing damages for rectification of the concrete floor slab' 'Whether the Tribunal erred in assessment of damages for accommodation costs' "Whether the Tribunal erred in findings as to the contract's termination and legal consequences" "Whether the Tribunal erred by not crediting 'negative variations' to the homeowner" 'Procedural fairness and admissibility of evidence']

Ratio Decidendi

The Tribunal erred in law by misapplying the damages principle in Bellgrove v Eldridge, accepting the homeowner's expert's method but not his quantum for the concrete slab rectification in favour of a different, rejected method's quantum. The order was varied to award the homeowner the actual cost of the accepted rectification method. No error of law was found regarding accommodation costs, contract termination, interest, or negative variations, and other grounds of appeal were dismissed.

Court Disposition

Appeal allowed in part (in AP 16/52241; homeowner's appeal); builder's appeal dismissed (AP 16/53370)

Orders

  • ['Order 1 of the Tribunal dated 28 October 2016 varied: The builder is to pay the homeowners $95,754.00 immediately.' 'The appeal (AP 16/52241) is otherwise dismissed.' 'Time for National Strategic Construction Pty Ltd to lodge appeal (AP 16/53370) is extended to 7 December 2016.' 'Leave to appeal (AP 16/53370) is...