Nu-Stone Building Pty Ltd v McInerney; McInerney v Nu-Stone Building Pty Ltd (No 2) [2024] NSWCATAP 87

Nu-Stone Building Pty Ltd v McInerney; McInerney v Nu-Stone Building Pty Ltd (No 2) [2024] NSWCATAP 87

The Tribunal erred by relying on cost to complete figures that did not account for factually incomplete works associated with a progress claim, as conceded by the builder; the correct adjustment for those incomplete works results in the builder owing the homeowners $22,616.37, not the prior sum. Both appeals were upheld; the appropriate legal method for contract damages in building claims was applied following established case law.

Jurisdiction
Australia
Judgment Date
20 May 2024
Procedural Posture
Internal Appeals From the Civil and Administrative Tribunal, Consumer and Commercial Division / Appeal Panel Determination Following Supreme Court Remitter
Outcome
Appeals upheld; orders varied
Legal Topics
['damages for Contract Repudiation' 'calculation of Completion Costs' 'procedural Fairness' 'costs Orders']
['building and Construction' 'contract'] ['damages for Contract Repudiation' 'calculation of Completion Costs' 'procedural Fairness' 'costs Orders']

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Procedural Posture

Internal Appeals From the Civil and Administrative Tribunal, Consumer and Commercial Division / Appeal Panel Determination Following Supreme Court Remitter

Legal Issues

  1. 1 ['Whether Tribunal erred in calculating damages for repudiation by builder' 'Whether Tribunal failed to account for variations or completion costs' 'Procedural fairness in exclusion of evidence' 'Appropriate measure of damages following contract termination']

Ratio Decidendi

The Tribunal erred by relying on cost to complete figures that did not account for factually incomplete works associated with a progress claim, as conceded by the builder; the correct adjustment for those incomplete works results in the builder owing the homeowners $22,616.37, not the prior sum. Both appeals were upheld; the appropriate legal method for contract damages in building claims was applied following established case law.

Court Disposition

Appeals upheld; orders varied

Orders

  • ['Time for filing homeowners’ notice of appeal extended to 23 February 2022.' 'Leave to appeal granted in both appeals.' 'Appeals are upheld.' 'Order 1 from HB 20/36393 (19 January 2022) set aside and replaced with order that Nu-Stone Building Pty Ltd pay $22,616.37 to Garry and Gladys McInerney immediately.' 'Order...