Grace v Pepe [2014] NSWDC 259

Grace v Pepe [2014] NSWDC 259

The appeal was allowed because the Tribunal erred in law in finding that the owners were entitled to suspend the builder from the site: the contract gave the builder a right to possession of the parts of the site reasonably required for the work, and the owners identified no contractual or common law right to suspend that access. The Tribunal did not err in rejecting the builder's entitlement to invoices 9 and 10, because cl 7 required claims to relate to the value of work done and the value of remaining work was relevant. However, the Tribunal's finding that the owners were entitled to terminate could not be justified by the pre-20 September 2010 matters relied on; issues concerning the...

Jurisdiction
Australia
Judgment Date
01 December 2014
Procedural Posture
Appeal From Consumer, Trader and Tenancy Tribunal in a Residential Building Contract Dispute / District Court Appeal Under S 67 of the Consumer, Trader and Tenancy Tribunal Act 2001 From Tribunal Decision Dismissing the Builder's Invoice Claim and Awarding the Owners Damages
Outcome
Appeal allowed; District Court remitted its decision on the questions set out in the reasons to the Tribunal and ordered a rehearing by the Tribunal.
Legal Topics
['residential Building Contract' "validity of Owners' Notice of Suspension" "validity of Builder's Notice of Suspension" 'notice to Rectify' 'termination of Contract' 'progress Payment Claims' 'appeal on Question With Respect to a Matter of Law' 'remitter for Rehearing']
['contract Law' 'building and Construction' 'civil Procedure' 'consumer, Trader and Tenancy Tribunal Appeals'] ['residential Building Contract' "validity of Owners' Notice of Suspension" "validity of Builder's Notice of Suspension" 'notice to Rectify' 'termination of Contract' 'progress Payment Claims' 'appeal on Question With Respect to a Matter of Law' 'remitter for Rehearing']

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Procedural Posture

Appeal From Consumer, Trader and Tenancy Tribunal in a Residential Building Contract Dispute / District Court Appeal Under S 67 of the Consumer, Trader and Tenancy Tribunal Act 2001 From Tribunal Decision Dismissing the Builder's Invoice Claim and Awarding the Owners Damages

Legal Issues

  1. 1 ["Whether the Tribunal erred in law in finding that the owners' suspension notice was valid or that the owners were entitled to suspend the builder from the site." "Whether there was no evidence to support findings that the owners' suspension was temporary or that the builder had been invited back to the site." "Whether the Tribunal erred in relation to the owners' notice to rectify and notice of termination." 'Whether the Tribunal erred in finding that the builder was not entitled to issue or recover invoices 9 and 10.' 'Whether the Tribunal erred in finding that the builder was not entitled to issue a notice of suspension for non-payment of invoices.' "Whether the owners were entitled to completion costs, which depended on the validity of the owners' termination of the contract." 'Whether unresolved questions about the notice to rectify, termination, repudiation, fundamental breach or abandonment should be remitted to the Tribunal.']

Ratio Decidendi

The appeal was allowed because the Tribunal erred in law in finding that the owners were entitled to suspend the builder from the site: the contract gave the builder a right to possession of the parts of the site reasonably required for the work, and the owners identified no contractual or common law right to suspend that access. The Tribunal did not err in rejecting the builder's entitlement to invoices 9 and 10, because cl 7 required claims to relate to the value of work done and the value of remaining work was relevant. However, the Tribunal's finding that the owners were entitled to terminate could not be justified by the pre-20 September 2010 matters relied on; issues concerning the...

Court Disposition

Appeal allowed; District Court remitted its decision on the questions set out in the reasons to the Tribunal and ordered a rehearing by the Tribunal.

Orders

  • ['Allow the appeal.' 'Remit my decision on the questions set out in these reasons to the Tribunal and order a rehearing of the proceedings by the Tribunal pursuant to s 67(3)(b) of the Consumer, Trader and Tenancy Tribunal Act 2001.' "Order the costs of the appeal (excluding the plaintiff's costs of the first day of...