Durastyle Homes Pty Ltd v Gosling; Gosling v Durastyle Homes Pty Ltd [2022] NSWCATCD 106

Durastyle Homes Pty Ltd v Gosling; Gosling v Durastyle Homes Pty Ltd [2022] NSWCATCD 106

The Tribunal found that the agreement was a cost plus contract, not a fixed price contract, and the builder was not entitled to further payment or quantum meruit recovery due to lack of evidence supporting fair value of claimed work and non-compliance with statutory insurance requirements. The owners proved certain defective work but could not recover for incomplete works or unproven defects. The builder was ordered to pay $13,994.97 for established defective work and the owners' costs.

Parties
Applicant in HB 21/02359; Respondent in HB 21/14341: Durastyle Homes Pty Ltd; Respondent in HB 21/02359; Applicant in HB 21/14341: Ty Allen Gosling; Respondent in HB 21/02359; Applicant in HB 21/14341: Deanne Vivienne Gosling
Jurisdiction
Australia
Judgment Date
28 June 2022
Procedural Posture
Home Building Claim – Defects and Contractual Dispute / Civil and Administrative Tribunal of NSW (consumer and Commercial Division) – Principal Judgment
Outcome
Builder's application dismissed; owners' application for defective work allowed in part; costs awarded to owners.
Legal Topics
Home Building, Defects Claim, Quantum Meruit, Statutory Warranty, Recovery for Incomplete/defective Work, Costs
Building and Construction Consumer Law Home Building Defects Claim Quantum Meruit Statutory Warranty Recovery for Incomplete/defective Work Costs

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Parties

Durastyle Homes Pty Ltd

Applicant in HB 21/02359; Respondent in HB 21/14341

Ty Allen Gosling

Respondent in HB 21/02359; Applicant in HB 21/14341

Deanne Vivienne Gosling

Respondent in HB 21/02359; Applicant in HB 21/14341

Procedural Posture

Home Building Claim – Defects and Contractual Dispute / Civil and Administrative Tribunal of NSW (consumer and Commercial Division) – Principal Judgment

Legal Issues

  1. 1 Whether the agreement was a cost plus contract or fixed price contract
  2. 2 Entitlement to damages for defective and/or incomplete work under Home Building Act 1989 (NSW)
  3. 3 Builder's entitlement to quantum meruit claim in light of absence of home warranty insurance

Ratio Decidendi

The Tribunal found that the agreement was a cost plus contract, not a fixed price contract, and the builder was not entitled to further payment or quantum meruit recovery due to lack of evidence supporting fair value of claimed work and non-compliance with statutory insurance requirements. The owners proved certain defective work but could not recover for incomplete works or unproven defects. The builder was ordered to pay $13,994.97 for established defective work and the owners' costs.

Court Disposition

Builder's application dismissed; owners' application for defective work allowed in part; costs awarded to owners.

Orders

  • In HB 21/14341 Durastyle Homes Pty Ltd is to pay $13,994.97 to Ty Allen and Deanne Vivienne Gosling immediately.
  • HB 21/02359 is dismissed.