Assaf v Sky Group Pty Ltd [2019] NSWCATCD 67

Assaf v Sky Group Pty Ltd [2019] NSWCATCD 67

The builder was entitled to terminate the contract at common law because the homeowner refused to pay a validly demanded invoice (PC8 Invoice 3) without reasonable grounds. The builder is liable for the cost of rectification of defective work found proved by the homeowner's evidence. The homeowner failed to prove entitlement for completion costs, but was awarded repayment for incomplete work already paid for. The builder's variation claim was awarded only for additional engineering fees established on the evidence.

Parties
Applicant in Hb17/18441; Respondent in Hb17/35616: George Assaf; Respondent in Hb17/18441; Applicant in Hb17/35616: Sky Group Pty Ltd
Jurisdiction
Australia
Judgment Date
30 July 2019
Procedural Posture
Tribunal Proceeding (consumer and Commercial Division) / Principal Judgment
Outcome
Orders for payment made by both parties, set off, with net judgment for George Assaf; provision for potential further applications as to costs or party names.
Legal Topics
Defective Building Work, Contract Termination, Statutory Warranties, Quantum Meruit, Variation Claims
Building and Construction Law Contract Law Consumer Law Defective Building Work Contract Termination Statutory Warranties Quantum Meruit Variation Claims

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Parties

George Assaf

Applicant in Hb17/18441; Respondent in Hb17/35616

Sky Group Pty Ltd

Respondent in Hb17/18441; Applicant in Hb17/35616

Procedural Posture

Tribunal Proceeding (consumer and Commercial Division) / Principal Judgment

Legal Issues

  1. 1 Whether the builder was liable for defective work under the Home Building Act 1989
  2. 2 Whether the builder or homeowner validly terminated the contract
  3. 3 Whether overpayments or outstanding payments existed at termination

Ratio Decidendi

The builder was entitled to terminate the contract at common law because the homeowner refused to pay a validly demanded invoice (PC8 Invoice 3) without reasonable grounds. The builder is liable for the cost of rectification of defective work found proved by the homeowner's evidence. The homeowner failed to prove entitlement for completion costs, but was awarded repayment for incomplete work already paid for. The builder's variation claim was awarded only for additional engineering fees established on the evidence.

Court Disposition

Orders for payment made by both parties, set off, with net judgment for George Assaf; provision for potential further applications as to costs or party names.

Orders

  • Sky Group Pty Ltd to pay George Assaf $128,348.79 for defective work and $7,000 for overpayment (HB17/18441)
  • George Assaf to pay Sky Group Pty Ltd $1,540 for variations (HB17/35616)