Antonio & Marianna Di Rico v Dion Cominos; Dion Cominos v Antonio & Marianna Di Rico [2015] NSWCATCD 75

Antonio & Marianna Di Rico v Dion Cominos; Dion Cominos v Antonio & Marianna Di Rico [2015] NSWCATCD 75

The Tribunal held that the builder is entitled to reasonable remuneration ($47,206.30) for work performed and materials supplied under quantum meruit, restitution, and estoppel principles, notwithstanding absence of written contract, as insurance was subsequently obtained and the home owner freely accepted and benefited from the works. The home owner's counterclaims for defective work and rectification were rejected due to insufficient evidence of causation or quantum and the operation of estoppel barring those defences.

Jurisdiction
Australia
Judgment Date
30 June 2015
Procedural Posture
Building Claim; Cross Application / Final Determination
Outcome
Builder's application allowed; home owner's application dismissed
Legal Topics
['quantum Meruit' 'unjust Enrichment' 'estoppel' 'statutory Warranties' 'rectification Costs']
['building and Construction' 'restitution' 'consumer Law'] ['quantum Meruit' 'unjust Enrichment' 'estoppel' 'statutory Warranties' 'rectification Costs']

Case Brief

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Procedural Posture

Building Claim; Cross Application / Final Determination

Legal Issues

  1. 1 ['Whether builder is entitled to reasonable remuneration for residential building work without a written contract' "Whether builder's claim is precluded by lack of insurance at time work performed" 'Whether home owner is entitled to rectification costs for alleged defective work' 'Application of quantum meruit, unjust enrichment, and estoppel principles']

Ratio Decidendi

The Tribunal held that the builder is entitled to reasonable remuneration ($47,206.30) for work performed and materials supplied under quantum meruit, restitution, and estoppel principles, notwithstanding absence of written contract, as insurance was subsequently obtained and the home owner freely accepted and benefited from the works. The home owner's counterclaims for defective work and rectification were rejected due to insufficient evidence of causation or quantum and the operation of estoppel barring those defences.

Court Disposition

Builder's application allowed; home owner's application dismissed

Orders

  • ['In HB 14/18936, respondent (Dion Cominos) to pay applicants (Antonio & Marianna Di Rico) $47,206.30 within 28 days.' 'In HB 14/18947, the application is dismissed.' 'Parties to confer about costs; if no agreement, leave to apply for relisting for argument on costs before 31 August 2015.']