Buckley v Ashby; Ashby v Buckley [2018] NSWCATCD 82

Buckley v Ashby; Ashby v Buckley [2018] NSWCATCD 82

The owner was justified in terminating the contract due to the builder's breach of an essential term (failure to complete mandatory critical stage inspections), and is entitled to damages for rectification and completion of work. The builder's claim for contractual damages is barred by s10 of the Home Building Act due to insufficient description of works in the contract but can recover restitution on a quantum meruit for the value of work and materials provided and accepted. Orders are made for payment to each party based on itemised assessment.

Jurisdiction
Australia
Judgment Date
07 December 2018
Procedural Posture
Application and Cross Application in the Consumer and Commercial Division (home Building) of NCAT / Final Determination
Outcome
Both parties partially succeed: owner awarded $49,988.75; builder awarded $45,120.34 on restitutionary grounds. Process set for costs applications.
Legal Topics
['construction of Contract' 'scope of Works' 'termination for Breach' 'quantum Meruit' 'restitution for Unenforceable Contract' 'rectification of Defects' 'damages Assessment']
['building and Construction' 'contract Law' 'restitution'] ['construction of Contract' 'scope of Works' 'termination for Breach' 'quantum Meruit' 'restitution for Unenforceable Contract' 'rectification of Defects' 'damages Assessment']

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Procedural Posture

Application and Cross Application in the Consumer and Commercial Division (home Building) of NCAT / Final Determination

Legal Issues

  1. 1 ['What was the scope of works required under the home building contract?' "Was the owner's termination of the contract justified under contract or common law?" 'Did the builder breach an essential term of the contract?' "Is the builder entitled to damages or quantum meruit given the contract's deficiencies?" 'How should damages or restitution be assessed where a contract is unenforceable?']

Ratio Decidendi

The owner was justified in terminating the contract due to the builder's breach of an essential term (failure to complete mandatory critical stage inspections), and is entitled to damages for rectification and completion of work. The builder's claim for contractual damages is barred by s10 of the Home Building Act due to insufficient description of works in the contract but can recover restitution on a quantum meruit for the value of work and materials provided and accepted. Orders are made for payment to each party based on itemised assessment.

Court Disposition

Both parties partially succeed: owner awarded $49,988.75; builder awarded $45,120.34 on restitutionary grounds. Process set for costs applications.

Orders

  • ['Joseph Ashby must pay Samantha Buckley $49,988.75 immediately (HB 17/18437).' 'Samantha Buckley must pay Joseph Ashby $45,120.34 immediately (HB 17/45250).' 'Costs applications to be lodged and served within 14 days, with further process and submissions to follow as delineated in orders 3–7.']