AAD Build Pty Ltd v John and Beverley Garside; John and Beverley Garside v AAD Build Pty Ltd and Andrew Dwight [2015] NSWCATCD 7

AAD Build Pty Ltd v John and Beverley Garside; John and Beverley Garside v AAD Build Pty Ltd and Andrew Dwight [2015] NSWCATCD 7

The Tribunal held that the Garsides were not estopped from denying that AAD Build Pty Ltd was the builder because no mutual assumption that AAD Build Pty Ltd was the contracting builder was established. On the objective construction of the contracts and surrounding documents, Andrew Dwight was the builder. Because Andrew Dwight had been removed as an applicant in the debt recovery proceedings, AAD Build Pty Ltd had no standing to recover unpaid contract monies, so HB 13/27106 was dismissed. The Tribunal accepted that the builder failed to take reasonable care by not checking and securing the secondary tarpaulins after earlier rain, causing some water penetration damage, and accepted...

Jurisdiction
Australia
Judgment Date
15 January 2015
Procedural Posture
Building Claims Arising From Residential Building Work Contracts, Including Debt Recovery and Cross Claim for Completion Costs and Damages / Principal Judgment After Hearing
Outcome
Both applications dismissed.
Legal Topics
['debt Recovery' 'completion Costs' 'damages for Failure to Take Reasonable Care' 'estoppel by Convention' 'identity of Contracting Party' 'water Penetration Damage' 'residential Building Work']
['consumer and Commercial Law' 'home Building' 'contract Law' 'negligence'] ['debt Recovery' 'completion Costs' 'damages for Failure to Take Reasonable Care' 'estoppel by Convention' 'identity of Contracting Party' 'water Penetration Damage' 'residential Building Work']

Case Brief

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Procedural Posture

Building Claims Arising From Residential Building Work Contracts, Including Debt Recovery and Cross Claim for Completion Costs and Damages / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the Garsides were estopped by convention from denying that AAD Build Pty Ltd was the builder.' 'Whether AAD Build Pty Ltd or Andrew Dwight was the builder under the contracts.' 'Whether AAD Build Pty Ltd had standing to recover unpaid contract monies.' 'Whether the Garsides established a basis for completion costs and repair costs under the first contract.' 'Whether the builder failed to take reasonable care in securing tarpaulins and whether that caused water damage.' 'Whether the claimed water damage, including ceiling repairs, painting, shutters, light fittings, bar area and timber floor replacement, was proved.']

Ratio Decidendi

The Tribunal held that the Garsides were not estopped from denying that AAD Build Pty Ltd was the builder because no mutual assumption that AAD Build Pty Ltd was the contracting builder was established. On the objective construction of the contracts and surrounding documents, Andrew Dwight was the builder. Because Andrew Dwight had been removed as an applicant in the debt recovery proceedings, AAD Build Pty Ltd had no standing to recover unpaid contract monies, so HB 13/27106 was dismissed. The Tribunal accepted that the builder failed to take reasonable care by not checking and securing the secondary tarpaulins after earlier rain, causing some water penetration damage, and accepted...

Court Disposition

Both applications dismissed.

Orders

  • ['HB 13/27106 is dismissed.' 'HB 13/39352 is dismissed.']