Longbottom v Boughton [2020] NSWCATAP 53

Longbottom v Boughton [2020] NSWCATAP 53

The Appeal Panel held that while the home owners did deny access to the site on 22 December 2016, this conduct did not constitute repudiation under common law, as the context demonstrated no absolute refusal to perform contractual obligations. The builder, therefore, was not entitled to terminate for repudiation, nor was denial of access a breach of an essential term. The Tribunal’s treatment of misleading/deceptive conduct was upheld since the builder’s statements were properly characterised as honestly held beliefs rather than false representations of fact. However, the Tribunal erred in not finding that the builder was entitled to terminate for non-payment of two duly issued and...

Parties
Appellant – Builder: Gregory Ross Boughton; Respondent – Home Owner: Dale Longbottom; Respondent – Home Owner: Natalie Longbottom
Jurisdiction
Australia
Judgment Date
23 March 2020
Procedural Posture
Internal Appeal / Appeal Panel Decision
Outcome
In Boughton v Longbottom [2020] NSWCATAP 53: In appeal AP19/50591 (home owners’ cross-appeal), leave to appeal refused and the appeal dismissed; in AP19/46638 (builder appeal), appeal allowed in part; order below set aside and builder to pay home owners $51,719.01; directions for cost applications given.
Legal Topics
Repudiation of Contract, Termination of Contract, Damages for Defective Works, Misleading and Deceptive Conduct, Contract Variations, Progress Payments, Set Off and Interest, Appeal Procedure
Home Building Contract Law Consumer Law Repudiation of Contract Termination of Contract Damages for Defective Works Misleading and Deceptive Conduct Contract Variations +3 more

Case Brief

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Parties

Gregory Ross Boughton

Appellant – Builder

Dale Longbottom

Respondent – Home Owner

Natalie Longbottom

Respondent – Home Owner

Procedural Posture

Internal Appeal / Appeal Panel Decision

Legal Issues

  1. 1 Whether the Tribunal erred in finding that the home owners had denied the builder/plasterers access to the site
  2. 2 Whether the denial of access or failure to pay amounted to repudiation of contract
  3. 3 Whether the builder was entitled to terminate the contract under clause 21.3 or the common law

Ratio Decidendi

The Appeal Panel held that while the home owners did deny access to the site on 22 December 2016, this conduct did not constitute repudiation under common law, as the context demonstrated no absolute refusal to perform contractual obligations. The builder, therefore, was not entitled to terminate for repudiation, nor was denial of access a breach of an essential term. The Tribunal’s treatment of misleading/deceptive conduct was upheld since the builder’s statements were properly characterised as honestly held beliefs rather than false representations of fact. However, the Tribunal erred in not finding that the builder was entitled to terminate for non-payment of two duly issued and...

Court Disposition

In Boughton v Longbottom [2020] NSWCATAP 53: In appeal AP19/50591 (home owners’ cross-appeal), leave to appeal refused and the appeal dismissed; in AP19/46638 (builder appeal), appeal allowed in part; order below set aside and builder to pay home owners $51,719.01; directions for cost applications given.

Orders

  • In AP19/50591, leave to appeal is refused and appeal dismissed.
  • In AP19/46638, the appeal is allowed in part; Order 1 (of K. Ross SM, 18 September 2019) is set aside; in lieu, Gregory Ross Boughton is to pay Dale Longbottom and Natalie Longbottom $51,719.01.