Ultra Developments Pty Ltd v Alison Bennett [2014] NSWCATCD 61

Ultra Developments Pty Ltd v Alison Bennett [2014] NSWCATCD 61

The builder validly suspended works because invoices 750 and 751 were outstanding and due to be paid; although non-compliant variations could not be recovered by enforcement action under the Home Building Act 1989 and Home Building Regulation 2004, the builder's suspension was not an enforcement of a remedy and the builder retained an entitlement to payment in respect of some amounts. The homeowner's purported termination and exclusion of the builder from the site was therefore wrongful, and the homeowner's cross application for damages failed. The builder proved an adjusted entitlement of $88,174.00 plus contractual interest on $45,442.00.

Jurisdiction
Australia
Judgment Date
01 May 2014
Procedural Posture
Home Building Dispute Concerning Residential Building Work, Contract Payments, Termination, Variations and Alleged Defective Workmanship / Principal Judgment After Hearing
Outcome
Builder's application allowed in part; homeowner's cross application dismissed; costs submissions directed.
Legal Topics
['residential Building Contract' 'suspension of Works' 'repudiation and Termination' 'variations' 'quantum Meruit' 'defective and Incomplete Works' 'interest' 'costs Submissions']
['home Building' 'contract Law' 'consumer and Residential Building Regulation'] ['residential Building Contract' 'suspension of Works' 'repudiation and Termination' 'variations' 'quantum Meruit' 'defective and Incomplete Works' 'interest' 'costs Submissions']

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Procedural Posture

Home Building Dispute Concerning Residential Building Work, Contract Payments, Termination, Variations and Alleged Defective Workmanship / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the builder had the right under Clause 32 of the contract to suspend the work.' 'Whether the suspension of the work by the builder amounted to a repudiation of contract entitling the homeowner to terminate.' 'Whether non-payment of an invoice for costs incurred in respect of an oral variation non-compliant with Clause 17 of the contract can constitute a breach under Clause 33.2(a) of the contract.' 'What was the proper contract adjustment reconciliation between the builder and the homeowner in the circumstances of the contract ending.' 'Whether the list of outstanding works as at the date the builder ceased at the site were defects or incomplete works.']

Ratio Decidendi

The builder validly suspended works because invoices 750 and 751 were outstanding and due to be paid; although non-compliant variations could not be recovered by enforcement action under the Home Building Act 1989 and Home Building Regulation 2004, the builder's suspension was not an enforcement of a remedy and the builder retained an entitlement to payment in respect of some amounts. The homeowner's purported termination and exclusion of the builder from the site was therefore wrongful, and the homeowner's cross application for damages failed. The builder proved an adjusted entitlement of $88,174.00 plus contractual interest on $45,442.00.

Court Disposition

Builder's application allowed in part; homeowner's cross application dismissed; costs submissions directed.

Orders

  • ['In matter no HB 11/51950 that the homeowner pay to the builder the sum of $88,174.00 on or before 31 May 2014.' 'In matter no HB 11/51950 that the homeowner pay to the builder on or before 31 May 2014 interest at the rate of 18 % per annum on the sum of $45,442.00 from 1 August 2011 to the date payment is received...