Jandson Pty Ltd v James [2021] NSWCATAP 274

Jandson Pty Ltd v James [2021] NSWCATAP 274

The owners' claim was out of time because the evidence did not support a finding that the parties formed a new contract or varied the original contract in 2017, either by offer and acceptance or by implication from conduct. The builder's 24 August 2017 correspondence rejected the owners' offer and made a counter offer, and there was no evidence that the owners or their solicitor accepted that counter offer. The Tribunal also erred in treating the Final Occupation Certificate as part of the building works and in finding completion occurred on 20 October 2010; under the contract and s 3B of the Home Building Act 1989 (NSW), completion was not the FOC date. The proceedings were therefore not...

Jurisdiction
Australia
Judgment Date
15 September 2021
Procedural Posture
Internal Appeal Under S 80(2) of the Civil and Administrative Tribunal Act 2013 (nsw) From a Consumer and Commercial Division Building Claim Under the Home Building Act 1989 (nsw) / Appeal Panel Decision
Outcome
Leave to appeal granted to the extent necessary; appeal allowed; Tribunal orders set aside; proceedings dismissed; respondents ordered to pay the appellant's costs of the Tribunal proceedings and appeal on the ordinary basis, subject to any application for a different costs order.
Legal Topics
['home Building Act Statutory Warranties' 'statutory Warranty Limitation Period' 'contract Formation' 'offer and Acceptance' 'consideration' 'forbearance to Sue' 'completion of Residential Building Work' 'internal Appeals' 'costs Follow the Event']
['building and Construction' 'contract Law' 'civil Procedure' 'costs'] ['home Building Act Statutory Warranties' 'statutory Warranty Limitation Period' 'contract Formation' 'offer and Acceptance' 'consideration' 'forbearance to Sue' 'completion of Residential Building Work' 'internal Appeals' 'costs Follow the Event']

Case Brief

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Procedural Posture

Internal Appeal Under S 80(2) of the Civil and Administrative Tribunal Act 2013 (nsw) From a Consumer and Commercial Division Building Claim Under the Home Building Act 1989 (nsw) / Appeal Panel Decision

Legal Issues

  1. 1 ["Whether the Tribunal erred in finding that the owners accepted the builder's 2017 offer and that a new contract was formed or the original contract was varied." "Whether any new contract or variation could be inferred from the parties' conduct." 'Whether sufficient consideration existed by reason of forbearance to sue.' 'Whether completion of the residential building work under the 2009 contract occurred when the Final Occupation Certificate was issued on 20 October 2010 or earlier.' "Whether the owners' building claim was out of time under the Home Building Act 1989 (NSW)."]

Ratio Decidendi

The owners' claim was out of time because the evidence did not support a finding that the parties formed a new contract or varied the original contract in 2017, either by offer and acceptance or by implication from conduct. The builder's 24 August 2017 correspondence rejected the owners' offer and made a counter offer, and there was no evidence that the owners or their solicitor accepted that counter offer. The Tribunal also erred in treating the Final Occupation Certificate as part of the building works and in finding completion occurred on 20 October 2010; under the contract and s 3B of the Home Building Act 1989 (NSW), completion was not the FOC date. The proceedings were therefore not...

Court Disposition

Leave to appeal granted to the extent necessary; appeal allowed; Tribunal orders set aside; proceedings dismissed; respondents ordered to pay the appellant's costs of the Tribunal proceedings and appeal on the ordinary basis, subject to any application for a different costs order.

Orders

  • ['To the extent necessary leave to appeal is granted.' 'The appeal is allowed.' 'Orders made in proceedings HB 19/04425 are set aside.' 'Proceedings HB 19/04425 are dismissed.' "Brett Anthony James and Liza Michelle James are to pay Jandson Pty Ltd's costs of the Tribunal proceedings and the appeal, on the ordinary...