Cyrilak Homes Pty Ltd & Siriwardeena v Weerasooriya; Weerasooriya v Cyrilak Homes Pty Ltd & Siriwardeena [2014] NSWCATCD 220

Cyrilak Homes Pty Ltd & Siriwardeena v Weerasooriya; Weerasooriya v Cyrilak Homes Pty Ltd & Siriwardeena [2014] NSWCATCD 220

The homeowner was entitled to a work order because the roof defect was obvious, inconsistent with the plans, and a real issue in the dispute, and the builder had not shown sufficient prejudice from the late amendment. The contractual builder was Mr Siriwardeena, notwithstanding Cyrilak invoices, because the written contract and homeowners warranty policy identified him, and the Cyrilak invoicing was treated as business convenience. The homeowner was bound by the written HIA cost plus contract: the contract clearly warned that the price was not known, no operative misrepresentation displaced the signed-contract rule, and the evidence did not establish misleading or deceptive conduct, bad...

Jurisdiction
Australia
Judgment Date
12 December 2014
Procedural Posture
Home Building Dispute: Builder's Claim for Unpaid Balance Under a Cost Plus Contract and Homeowner's Cross Claim for Defective and Incomplete Work. / Principal Judgment After Hearing
Outcome
Builder awarded unpaid contract balance of $6,697.00 plus contractual interest; homeowner awarded a work order for rectification of the roof line; each party to pay their own costs subject to stay for submissions.
Legal Topics
['cost Plus Home Building Contract' 'misleading or Deceptive Conduct' 'false or Misleading Representations About Price' 'signed Contracts and Incorporation of Terms' 'quantum Meruit for Variations' 'defective Work and Work Orders' 'repudiation and Termination' 'progress Payment Invoices' 'remoteness and Mitigation of Loss' 'adverse Inference']
['home Building' 'consumer Law' 'contract Law' 'civil Procedure' 'costs'] ['cost Plus Home Building Contract' 'misleading or Deceptive Conduct' 'false or Misleading Representations About Price' 'signed Contracts and Incorporation of Terms' 'quantum Meruit for Variations' 'defective Work and Work Orders' 'repudiation and Termination' 'progress Payment Invoices' 'remoteness and Mitigation of Loss' 'adverse Inference']

Case Brief

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Procedural Posture

Home Building Dispute: Builder's Claim for Unpaid Balance Under a Cost Plus Contract and Homeowner's Cross Claim for Defective and Incomplete Work. / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the homeowner should be permitted to amend the application during the hearing to seek a work order for realignment of the roof.' 'Whether Cyrilak Homes Pty Ltd or Laksha Siriwardeena was the builder for the purposes of the proceedings.' 'Whether the builder engaged in misleading or deceptive conduct or made false or misleading representations about the cost of the project.' 'Whether the contract was a fixed price contract or a cost plus contract.' 'Whether the builder could recover for alleged variations on a quantum meruit basis.' 'Whether the homeowner could recover payments for a locum radiographer, tiling and electrical work.' "Whether the homeowner proved that the builder's invoices were wrong." 'Whether the contract was terminated and whether the builder remained entitled to payment for work done up to termination.']

Ratio Decidendi

The homeowner was entitled to a work order because the roof defect was obvious, inconsistent with the plans, and a real issue in the dispute, and the builder had not shown sufficient prejudice from the late amendment. The contractual builder was Mr Siriwardeena, notwithstanding Cyrilak invoices, because the written contract and homeowners warranty policy identified him, and the Cyrilak invoicing was treated as business convenience. The homeowner was bound by the written HIA cost plus contract: the contract clearly warned that the price was not known, no operative misrepresentation displaced the signed-contract rule, and the evidence did not establish misleading or deceptive conduct, bad...

Court Disposition

Builder awarded unpaid contract balance of $6,697.00 plus contractual interest; homeowner awarded a work order for rectification of the roof line; each party to pay their own costs subject to stay for submissions.

Orders

  • ['The builder must rectify the roof line so that it conforms with the plans and specifications on or before 1 March 2015.' 'Homeowner is to pay the builder $6,697.00 plus interest calculated under the contract on or before 15 January 2015.' 'Each party to pay their own costs but this order stayed until 31 December...