Lucchese v McDonell [2018] NSWCATAP 120

Lucchese v McDonell [2018] NSWCATAP 120

The Tribunal was correct to calculate the builder's entitlement on the basis of accrued contractual rights, not quantum meruit; however, it erred in failing to deduct the deposit already paid when assessing the amount owing under the contract. It further erred in disallowing rectification claims solely because the quotes relied on had not been accepted or paid, since the law does not require rectification works to have been completed before damages are awarded. The Tribunal correctly required proof of expenditure or justification for owner's claims for labour costs.

Jurisdiction
Australia
Judgment Date
21 May 2018
Procedural Posture
Appeal / Determination of Internal Appeal of Tribunal Decisions
Outcome
Appeal allowed in part; Tribunal decisions set aside; fresh orders made including net monetary judgment and directions on costs.
Legal Topics
['building Contracts' 'contract Termination' 'accrued Rights' 'deposits' 'rectification Costs' 'proof of Claim' 'evidence in Tribunal' 'set Off of Amounts' 'tribunal Procedure']
['building and Construction' 'contract Law' 'civil Procedure'] ['building Contracts' 'contract Termination' 'accrued Rights' 'deposits' 'rectification Costs' 'proof of Claim' 'evidence in Tribunal' 'set Off of Amounts' 'tribunal Procedure']

Case Brief

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Procedural Posture

Appeal / Determination of Internal Appeal of Tribunal Decisions

Legal Issues

  1. 1 ['Whether the Tribunal erred by calculating the amount payable to the builders under the terminated contract' 'Whether the deposit should have been deducted from the amount awarded to the builders' 'Whether reliance on rectification quotes (not paid/accepted) is sufficient for damages' "Whether owner's claim for their own labour for defect rectification was properly disallowed"]

Ratio Decidendi

The Tribunal was correct to calculate the builder's entitlement on the basis of accrued contractual rights, not quantum meruit; however, it erred in failing to deduct the deposit already paid when assessing the amount owing under the contract. It further erred in disallowing rectification claims solely because the quotes relied on had not been accepted or paid, since the law does not require rectification works to have been completed before damages are awarded. The Tribunal correctly required proof of expenditure or justification for owner's claims for labour costs.

Court Disposition

Appeal allowed in part; Tribunal decisions set aside; fresh orders made including net monetary judgment and directions on costs.

Orders

  • ['Time for the appellants to lodge their Notice of Appeal be extended up to and including 20 February 2018.' 'AP 18/08577: Appeal allowed in part. Tribunal decision dated 19 January 2018 set aside. Proceedings dismissed.' 'AP 18/08247: Appeal allowed in part. Tribunal decision dated 19 January 2018 set aside. Order...