Cappello v Hammond & Simonds NSW Pty Ltd [2020] NSWSC 1021

Cappello v Hammond & Simonds NSW Pty Ltd [2020] NSWSC 1021

The builder was entitled to terminate the contract due to the plaintiffs' failure to pay the outstanding invoice, is entitled to judgment for the balance. Liquidated damages clause specifying $1 per day is not an exclusive remedy, so plaintiffs may claim provable damages for delay, but claims for diminution in value are too remote and lack evidence. Breach of statutory warranties entitles plaintiffs to recover specific sums for certain defects; amounts should be set off. No liability attaches to the second defendant due to absence of contractual relationship.

Jurisdiction
Australia
Judgment Date
07 August 2020
Procedural Posture
Principal Judgment / Final Judgment
Outcome
Judgment for first defendant in the sum of $76,510.68; proceedings against second defendant dismissed; costs submissions to be determined in writing.
Legal Topics
['damages for Work Done But Not Invoiced' 'quantum Meruit' 'liquidated Damages' 'statutory Warranties' 'delay Damages' 'contract Termination' 'breach of Contract']
['building and Construction' 'contract' 'equity'] ['damages for Work Done But Not Invoiced' 'quantum Meruit' 'liquidated Damages' 'statutory Warranties' 'delay Damages' 'contract Termination' 'breach of Contract']

Case Brief

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Procedural Posture

Principal Judgment / Final Judgment

Legal Issues

  1. 1 ['Whether the builder validly terminated the contract for non-payment and is entitled to recover outstanding invoice and unbilled work' 'Whether plaintiffs are entitled to damages for delay in completing building work' 'Whether plaintiffs are entitled to recover damages for defects and overcharging' 'Whether second defendant is liable for damages claimed by plaintiffs']

Ratio Decidendi

The builder was entitled to terminate the contract due to the plaintiffs' failure to pay the outstanding invoice, is entitled to judgment for the balance. Liquidated damages clause specifying $1 per day is not an exclusive remedy, so plaintiffs may claim provable damages for delay, but claims for diminution in value are too remote and lack evidence. Breach of statutory warranties entitles plaintiffs to recover specific sums for certain defects; amounts should be set off. No liability attaches to the second defendant due to absence of contractual relationship.

Court Disposition

Judgment for first defendant in the sum of $76,510.68; proceedings against second defendant dismissed; costs submissions to be determined in writing.

Orders

  • ['Judgment for the first defendant in the sum of $76,510.68.' 'Proceedings against the second defendant dismissed.' 'Defendants to serve written submissions on costs by 14 August 2020 (max 5 pages).' 'Plaintiffs to serve written submissions in response by 21 August 2020 (max 5 pages).' 'Defendants to reply by 26...