Simpson and Pritchard v Steward & Steward [2011] NSWSC 491

Simpson and Pritchard v Steward & Steward [2011] NSWSC 491

The contract was not a costs plus contract with a cap: the evidence of an oral cap was not accepted, the contractual documents and handwritten warning stated that the contract price was not known and that it was a costs plus contract, and the figure of $467,318.07 was used to calculate the deposit rather than to impose a ceiling. ASB Constructions was not shown to have breached the contractual timing obligation because the 27-week period ran from commencement after the construction certificate, and the later agreement fixed completion by 29 June 2007 subject to an extension. The plaintiffs failed to prove actionable misleading or deceptive conduct causing loss, although Mr Steward...

Jurisdiction
Australia
Judgment Date
10 June 2011
Procedural Posture
Building and Construction Contract Dispute; Misleading or Deceptive Conduct Claim; Cross Claim for Contract Balance / Principal Judgment After Hearing, With Outstanding Factual and Quantification Issues Referred to an Expert Referee
Outcome
The plaintiffs' claims that the contract was capped and that they were entitled to damages for misleading or deceptive conduct or delay failed; unresolved factual and quantification issues were referred to an expert referee, with costs reserved until after the referee's report.
Legal Topics
['construction of Costs Plus Building Contract' 'whether Costs Plus Contract Had a Cap' 'misleading or Deceptive Conduct Under S 42 of the Fair Trading Act 1987' 'residential Building Warranties' 'variations to Building Works' 'reference to Expert Referee']
['contracts' 'building and Construction' 'trade Practices' 'restitution' 'home Building'] ['construction of Costs Plus Building Contract' 'whether Costs Plus Contract Had a Cap' 'misleading or Deceptive Conduct Under S 42 of the Fair Trading Act 1987' 'residential Building Warranties' 'variations to Building Works' 'reference to Expert Referee']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Building and Construction Contract Dispute; Misleading or Deceptive Conduct Claim; Cross Claim for Contract Balance / Principal Judgment After Hearing, With Outstanding Factual and Quantification Issues Referred to an Expert Referee

Legal Issues

  1. 1 ['Whether the building contract was a simple costs plus contract or a costs plus contract capped at $467,318.07.' 'Whether ASB Constructions breached express or implied terms concerning time for completion, competitive pricing, consultation, occupation of the premises, variations, workmanship and certification.' 'Whether Mr Steward or ASB Constructions made misleading or deceptive representations before or during the contract.' 'Whether the plaintiffs suffered loss by reason of any representation made.' 'Whether ASB Constructions could recover reasonable remuneration for requested or authorised variations not agreed in writing.' 'Whether outstanding factual issues concerning defects, variations, charges and completion costs should be referred to an expert referee.']

Ratio Decidendi

The contract was not a costs plus contract with a cap: the evidence of an oral cap was not accepted, the contractual documents and handwritten warning stated that the contract price was not known and that it was a costs plus contract, and the figure of $467,318.07 was used to calculate the deposit rather than to impose a ceiling. ASB Constructions was not shown to have breached the contractual timing obligation because the 27-week period ran from commencement after the construction certificate, and the later agreement fixed completion by 29 June 2007 subject to an extension. The plaintiffs failed to prove actionable misleading or deceptive conduct causing loss, although Mr Steward...

Court Disposition

The plaintiffs' claims that the contract was capped and that they were entitled to damages for misleading or deceptive conduct or delay failed; unresolved factual and quantification issues were referred to an expert referee, with costs reserved until after the referee's report.

Orders

  • ['The outstanding substantive factual issues identified in paragraph 109 are to be the subject of a reference to an expert referee for determination and quantification.' "The matters for reference include whether the defendants' work, including variations, was defective or not carried out in a proper and workmanlike...