Gray v Unique Building and Construction Services Pty Ltd; Unique Building and Construction Services Pty Ltd v Gray [2023] NSWCATCD 155

Gray v Unique Building and Construction Services Pty Ltd; Unique Building and Construction Services Pty Ltd v Gray [2023] NSWCATCD 155

The parties' agreement of 1 November 2022 constituted a variation of the original contract, capping the remaining amount payable by the owners at $150,000, rendering unenforceable further claims for variations or PC/PS items thereafter. The builder was entitled only to the final instalment under this revised schedule plus contractual interest for late payment. The Tribunal ordered payment of $52,325.71 (final instalment plus interest minus a deduction for breach of access provisions) and upon payment, transfer of access and keys to the owners. The builder's broader claims in its cross-application were rejected for lack of contractual or factual basis.

Jurisdiction
Australia
Judgment Date
03 October 2023
Procedural Posture
Tribunal Proceeding (home Building Dispute) / Final Decision
Outcome
Applicant succeeds in part; respondent (builder) to be paid $52,325.71; builder to hand over possession and keys upon payment; cross-application by builder dismissed; no order as to costs for either application.
Legal Topics
['home Building Disputes' 'variation of Contracts' 'progress Payments' 'quantum Meruit' 'entitlement to Final Payment' 'pc and PS Items' 'tribunal Costs' 'remedies for Breach of Contract']
['building and Construction' 'contracts' 'consumer Law'] ['home Building Disputes' 'variation of Contracts' 'progress Payments' 'quantum Meruit' 'entitlement to Final Payment' 'pc and PS Items' 'tribunal Costs' 'remedies for Breach of Contract']

Case Brief

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Procedural Posture

Tribunal Proceeding (home Building Dispute) / Final Decision

Legal Issues

  1. 1 ['Whether the agreement between the parties varied the original building contract' 'Whether the builder is entitled to additional payments beyond the varied agreement' 'Whether the final payment is due to the builder and on what terms' 'Entitlement to interest on late final payment under contract' "Validity of the builder's variation claims" 'Whether the builder is required to hand over keys and possession before final payment' 'Entitlement to costs and quantification of damages for minor breaches']

Ratio Decidendi

The parties' agreement of 1 November 2022 constituted a variation of the original contract, capping the remaining amount payable by the owners at $150,000, rendering unenforceable further claims for variations or PC/PS items thereafter. The builder was entitled only to the final instalment under this revised schedule plus contractual interest for late payment. The Tribunal ordered payment of $52,325.71 (final instalment plus interest minus a deduction for breach of access provisions) and upon payment, transfer of access and keys to the owners. The builder's broader claims in its cross-application were rejected for lack of contractual or factual basis.

Court Disposition

Applicant succeeds in part; respondent (builder) to be paid $52,325.71; builder to hand over possession and keys upon payment; cross-application by builder dismissed; no order as to costs for either application.

Orders

  • ['Applicants to pay respondent $52,325.71 on or before 10 October 2023.' 'Within 24 hours of payment, respondent to provide owners with unrestricted access and possession, including all keys.' 'No order as to costs (HB 23/18492).' "Builder's cross-application dismissed (HB 23/30249)." 'No order as to costs (HB...