Brett Shearer and Bronwyn Shearer v Urban Constructions (NSW) Pty Ltd and Anthony John Cosco [2015] NSWCATCD 3

Brett Shearer and Bronwyn Shearer v Urban Constructions (NSW) Pty Ltd and Anthony John Cosco [2015] NSWCATCD 3

The restitution claims failed because the owners did not cite evidence proving payments were made under a mistake of fact or law, and in any event the builder's successful quantum meruit application under section 94(1A) of the Home Building Act 1989 was a circumstance sufficient to displace any prima facie entitlement. The Tribunal found that the parties did not enter into a fixed price contract; the work was to be carried out on a cost plus basis and the 3 November 2009 quotation was no more than a list of prices unreferenced to a scope of works and lacking contractual terms. Most incomplete work claims failed because the owners did not prove scope, incompleteness, or additional...

Jurisdiction
Australia
Judgment Date
10 February 2015
Procedural Posture
Building Claim Under Section 48 a of the Home Building Act 1989; Cross Proceedings to HB 10/44316 / Principal Judgment After Hearing in the Consumer and Commercial Division of the Civil and Administrative Tribunal of New South Wales
Outcome
Urban Constructions (NSW) Pty Ltd ordered to pay Brett Shearer and Bronwyn Shearer $540.00; owners' other claims dismissed or not made out; liberty to apply for costs.
Legal Topics
['home Building Work' 'cost Plus Contract' 'alleged Fixed Price Contract' 'incomplete Work' 'defective Work' 'misleading and Deceptive Conduct' 'money Paid Under Mistake' 'quantum Meruit' 'costs Applications']
['building and Construction' 'consumer Law' 'contract' 'restitution' 'negligence'] ['home Building Work' 'cost Plus Contract' 'alleged Fixed Price Contract' 'incomplete Work' 'defective Work' 'misleading and Deceptive Conduct' 'money Paid Under Mistake' 'quantum Meruit' 'costs Applications']

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Procedural Posture

Building Claim Under Section 48 a of the Home Building Act 1989; Cross Proceedings to HB 10/44316 / Principal Judgment After Hearing in the Consumer and Commercial Division of the Civil and Administrative Tribunal of New South Wales

Legal Issues

  1. 1 ['Whether the owners could recover $235,000.00, or alternatively $65,348.00, in restitution as money paid under a mistake concerning Home Owners Warranty Insurance and sections 92(2) and 94(1) of the Home Building Act 1989.' 'Whether the parties entered into a fixed price contract for $169,652.00 or a cost plus contract.' 'Whether the owners were entitled to damages for defective or incomplete work following termination of the contract.' 'Whether alleged representations by the builder or Mr Cosco constituted misleading and deceptive conduct causing loss.' 'Whether costs applications should be permitted and determined on the papers.']

Ratio Decidendi

The restitution claims failed because the owners did not cite evidence proving payments were made under a mistake of fact or law, and in any event the builder's successful quantum meruit application under section 94(1A) of the Home Building Act 1989 was a circumstance sufficient to displace any prima facie entitlement. The Tribunal found that the parties did not enter into a fixed price contract; the work was to be carried out on a cost plus basis and the 3 November 2009 quotation was no more than a list of prices unreferenced to a scope of works and lacking contractual terms. Most incomplete work claims failed because the owners did not prove scope, incompleteness, or additional...

Court Disposition

Urban Constructions (NSW) Pty Ltd ordered to pay Brett Shearer and Bronwyn Shearer $540.00; owners' other claims dismissed or not made out; liberty to apply for costs.

Orders

  • ['Urban Constructions (NSW) Pty Ltd must pay Brett Shearer and Bronwyn Shearer the sum of $540.00 within 21 days of the date of this order.' 'Either party is at liberty to make a costs application in these proceedings.' 'Any costs application pursuant to section 53 of the Consumer, Trader and Tenancy Tribunal Act...