Onethree Pty Ltd v Seaman [2018] NSWCATCD 83

Onethree Pty Ltd v Seaman [2018] NSWCATCD 83

The contract provided an exclusive remedy for delay damages via the liquidated damages rate and excluded the owners’ right to common law damages. Progress payments were owed to the builder; owners' cross claims for non-authorised progress payments and non-economic loss failed as the statutory and contractual thresholds were not met. $1,000.00 was allowed for wrongful retention of possession, and set-off applied.

Parties
Applicant/builder: Onethree Pty Ltd; Respondent/owner: Dayne Seaman; Respondent/owner: Danielle Corrigan
Jurisdiction
Australia
Judgment Date
19 December 2018
Procedural Posture
Building Dispute / Final Decision
Outcome
Builder's claim allowed less owners' successful cross claim by way of set-off; owners’ other claims dismissed.
Legal Topics
Liquidated Damages, Delay Damages, Statutory Warranties, Contractual Interpretation, Right of Possession, Exemplary Damages
Building and Construction Contract Law Liquidated Damages Delay Damages Statutory Warranties Contractual Interpretation Right of Possession Exemplary Damages

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Parties

Onethree Pty Ltd

Applicant/builder

Dayne Seaman

Respondent/owner

Danielle Corrigan

Respondent/owner

Procedural Posture

Building Dispute / Final Decision

Legal Issues

  1. 1 Entitlement to progress payment
  2. 2 Owner's entitlement to delay damages beyond liquidated damages
  3. 3 Unlawfully claimed progress payments under Home Building Act 1989

Ratio Decidendi

The contract provided an exclusive remedy for delay damages via the liquidated damages rate and excluded the owners’ right to common law damages. Progress payments were owed to the builder; owners' cross claims for non-authorised progress payments and non-economic loss failed as the statutory and contractual thresholds were not met. $1,000.00 was allowed for wrongful retention of possession, and set-off applied.

Court Disposition

Builder's claim allowed less owners' successful cross claim by way of set-off; owners’ other claims dismissed.

Orders

  • Dayne Seaman and Danielle Corrigan must pay Onethree Pty Ltd the sum of $44,941.85 immediately.
  • Any costs application must be lodged in the Tribunal and served on the costs respondent within 14 days of the date of this order either attaching or referring to the documents relied upon in support of the application.