Peter Bartel v Catherine Ryan; Catherine Ryan v Peter Bartel [2018] NSWCATCD 12

Peter Bartel v Catherine Ryan; Catherine Ryan v Peter Bartel [2018] NSWCATCD 12

The builder's claim failed because the alleged variations were not authorised in writing or dealt with under cl 14 of the fixed price contract, several were the builder's responsibility or not shown to be authorised by the owner, and there was no admissible evidence proving their value. The owner was entitled to terminate after the builder left the site, had been paid more than his contractual entitlement for the stage reached, and refused to return. The owner was entitled to completion and rectification costs assessed from the available evidence, reduced for excluded items, work contemplated to be performed by Beau Ryan, and the unpaid balance under the contract, leaving $62,300 payable...

Jurisdiction
Australia
Judgment Date
02 May 2018
Procedural Posture
Home Building Dispute in the Consumer and Commercial Division of the Civil and Administrative Tribunal of New South Wales / Hearing of Builder's Claim and Owner's Cross Claim; Principal Judgment
Outcome
Builder's application dismissed; owner's cross claim allowed in part with judgment for $62,300 payable by the builder to the owner within one month; parties given liberty to apply for costs.
Legal Topics
["builder's Claim for Cost of Variations" "owner's Cross Claim for Completion and Rectification Costs" 'variations Not in Writing' 'quantum Meruit' 'termination of Residential Building Contract' 'admission of Late Evidence' 'costs Applications']
['building and Construction' 'consumer and Commercial' 'civil Procedure'] ["builder's Claim for Cost of Variations" "owner's Cross Claim for Completion and Rectification Costs" 'variations Not in Writing' 'quantum Meruit' 'termination of Residential Building Contract' 'admission of Late Evidence' 'costs Applications']

Case Brief

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Procedural Posture

Home Building Dispute in the Consumer and Commercial Division of the Civil and Administrative Tribunal of New South Wales / Hearing of Builder's Claim and Owner's Cross Claim; Principal Judgment

Legal Issues

  1. 1 ['Whether the builder was entitled to recover for alleged variations that were not authorised in writing under the contract.' 'Whether the builder could recover on a quantum meruit basis for alleged variations.' "Whether late evidence on quantification of the builder's variations claim should be admitted." 'Whether the owner validly terminated the contract after the builder left the site and refused to return.' "What amount, if any, was payable to the owner for completion and rectification of the works after allowing for payments made and work to be performed by the owner's son."]

Ratio Decidendi

The builder's claim failed because the alleged variations were not authorised in writing or dealt with under cl 14 of the fixed price contract, several were the builder's responsibility or not shown to be authorised by the owner, and there was no admissible evidence proving their value. The owner was entitled to terminate after the builder left the site, had been paid more than his contractual entitlement for the stage reached, and refused to return. The owner was entitled to completion and rectification costs assessed from the available evidence, reduced for excluded items, work contemplated to be performed by Beau Ryan, and the unpaid balance under the contract, leaving $62,300 payable...

Court Disposition

Builder's application dismissed; owner's cross claim allowed in part with judgment for $62,300 payable by the builder to the owner within one month; parties given liberty to apply for costs.

Orders

  • ["On the Hearing of the builder's claim against the owner (HB 17/04880) the application is dismissed." "On the Hearing of the owner's cross claim against the builder, the builder is to pay the owner the sum of $62,300.00 within one month of the date of these orders." 'Parties are at liberty to make a cost...