Benjamin v Geneville Constructions Pty Ltd; Geneville Constructions Pty Ltd v Benjamin [2021] NSWCATAP 138

Benjamin v Geneville Constructions Pty Ltd; Geneville Constructions Pty Ltd v Benjamin [2021] NSWCATAP 138

Clause 14.7 of the building contract entitles the builder, upon contract termination, to claim reimbursement of costs incurred for materials ordered (even if not delivered but non-refundable) and for preparatory services sufficiently causally connected to the contract works, plus the builder's margin. There was no error in the Tribunal's construction or application of clause 14.7, and no basis to overturn factual findings in the absence of clear injustice or error.

Jurisdiction
Australia
Judgment Date
18 May 2021
Procedural Posture
Internal Appeal (tribunal) / Appeal Determination by Appeal Panel
Outcome
Owners' appeal dismissed; builder's appeal allowed; tribunal orders varied.
Legal Topics
['home Building' 'pre Contractual Work' 'scope of Contract' 'contract Termination' 'compensation on Termination' 'interpretation of Building Contract Clause' 'tribunal Appeal Procedure']
['building and Construction' 'contract Law' 'consumer Law'] ['home Building' 'pre Contractual Work' 'scope of Contract' 'contract Termination' 'compensation on Termination' 'interpretation of Building Contract Clause' 'tribunal Appeal Procedure']

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Procedural Posture

Internal Appeal (tribunal) / Appeal Determination by Appeal Panel

Legal Issues

  1. 1 ['Whether the Tribunal erred in permitting a claim for costs of materials not delivered (windows and frames)' 'Whether the Tribunal erred in allowing costs for temporary fencing for a period longer than installed' 'Whether the Tribunal erred in allowing pre-contractual costs under the building contract' 'Proper interpretation of cl 14.7 of the building contract']

Ratio Decidendi

Clause 14.7 of the building contract entitles the builder, upon contract termination, to claim reimbursement of costs incurred for materials ordered (even if not delivered but non-refundable) and for preparatory services sufficiently causally connected to the contract works, plus the builder's margin. There was no error in the Tribunal's construction or application of clause 14.7, and no basis to overturn factual findings in the absence of clear injustice or error.

Court Disposition

Owners' appeal dismissed; builder's appeal allowed; tribunal orders varied.

Orders

  • ['Time for filing the appeal in AP 20/22780 extended to 25 May 2020, if required.' 'Time for filing the appeal in AP 20/24046 extended to 2 June 2020.' 'Leave for legal representation is extended to AP 20/24046.' 'The appeal in HB 20/22780 is dismissed.' 'The appeal in HB 20/24046 is allowed.' "The order made 27...