H Build Pty Ltd v Nixon [2018] NSWCATCD 20

H Build Pty Ltd v Nixon [2018] NSWCATCD 20

The builder was not in default as alleged. The changes in V1, V2 and V3 were variations established by instructions and amended drawings under clause 14(a) and (b), and were payable as Cost of Works under clause 14(d); the homeowner's proposed implied term requiring prior review, quotation or consent was inconsistent with the express contract. The builder's progress claims and Budget Reports complied with the contract, the suspensions were justified, and the homeowner had no contractual or common law basis to terminate. The homeowner's notice of termination therefore repudiated the contract, which the builder validly accepted, entitling the builder to contractual payment, interest and...

Jurisdiction
Australia
Judgment Date
07 May 2018
Procedural Posture
Home Building Dispute Arising From a Cost Plus Residential Building Contract, Including Builder's Claim for Unpaid Progress Claims and Homeowner's Cross Application for Termination Damages / Principal Judgment After Hearing in the Consumer and Commercial Division
Outcome
Builder's application succeeded; homeowner's cross application dismissed.
Legal Topics
['cost Plus Contract' 'variations' 'progress Claims' 'budget Reports' 'implied Terms' 'suspension of Works' 'repudiation' 'termination Under Contract and at Common Law' 'delay Costs' 'statutory Warranties']
['home Building' 'building and Construction' 'contract Law' 'consumer and Commercial'] ['cost Plus Contract' 'variations' 'progress Claims' 'budget Reports' 'implied Terms' 'suspension of Works' 'repudiation' 'termination Under Contract and at Common Law' 'delay Costs' 'statutory Warranties']

Case Brief

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Procedural Posture

Home Building Dispute Arising From a Cost Plus Residential Building Contract, Including Builder's Claim for Unpaid Progress Claims and Homeowner's Cross Application for Termination Damages / Principal Judgment After Hearing in the Consumer and Commercial Division

Legal Issues

  1. 1 ['Whether items in V1, V2 and V3 were variations established under clause 14(a) and (b) of the contract or variations requiring written agreement and signatures under clause 14(c).' "Whether the builder's progress claims and supporting documents complied with clause 17 of the contract and the Home Building Act 1989." 'Whether the builder complied with the contractual requirements for Budget Reports.' "Whether the homeowner's instruction that no further costs be incurred and the builder's later notice of suspension validly suspended the works." 'Whether the builder was in default under clause 26 or had repudiated the contract.' 'Whether the homeowner validly terminated the contract under clause 26 or at common law, or instead repudiated the contract.' 'What amounts, including interest and lost profit, were payable to the builder.']

Ratio Decidendi

The builder was not in default as alleged. The changes in V1, V2 and V3 were variations established by instructions and amended drawings under clause 14(a) and (b), and were payable as Cost of Works under clause 14(d); the homeowner's proposed implied term requiring prior review, quotation or consent was inconsistent with the express contract. The builder's progress claims and Budget Reports complied with the contract, the suspensions were justified, and the homeowner had no contractual or common law basis to terminate. The homeowner's notice of termination therefore repudiated the contract, which the builder validly accepted, entitling the builder to contractual payment, interest and...

Court Disposition

Builder's application succeeded; homeowner's cross application dismissed.

Orders

  • ['In HB 17/08049 the homeowner is to pay to the builder $199,639.36 immediately.' 'HB 17/19441 is dismissed.' 'Any Application concerning costs in proceedings HB 17/08049 and HB 17/19441 is to file in the Tribunal along with evidence in support of the Application and Submissions on or before 28 May 2018.' 'Any...