Macquarie Grove Homes Pty Ltd v Tony Aylott & Glen Aylott t/as T&G Bricklaying; Tony Aylott & Glen Aylott t/as T&G Bricklaying v Macquarie Grove Homes Pty Ltd [2016] NSWCATAP 142

Macquarie Grove Homes Pty Ltd v Tony Aylott & Glen Aylott t/as T&G Bricklaying; Tony Aylott & Glen Aylott t/as T&G Bricklaying v Macquarie Grove Homes Pty Ltd [2016] NSWCATAP 142

Both appeals are dismissed: the Tribunal correctly found the settlement amount for rectification (Acratex) was a reasonable measure of damages caused by T&G's breach of statutory warranty implied by the Home Building Act, but Macquarie failed to provide sufficient and credible evidence to quantify its claim for legal costs as damages, despite such costs not being too remote in principle. There was no error in the Tribunal’s findings on jurisdiction, mitigation, or estoppel. Failure by T&G to be joined to the CTTT proceedings did not deprive Macquarie of its claim.

Parties
Appellant in AP 15/65214; Respondent in AP 15/65327: Macquarie Grove Homes Pty Ltd; Respondents in AP 15/65214; Appellants in AP 15/65327: Tony Aylott & Glen Aylott t/as T&G Bricklaying
Jurisdiction
Australia
Judgment Date
28 June 2016
Procedural Posture
Internal Appeal / Appeal Panel Decision on Appeals From Tribunal Decision
Outcome
Both appeals dismissed.
Legal Topics
Statutory Warranties (home Building Act), Damages (assessment and Remoteness), Reasonableness of Settlement, Subcontractor Liability, Mitigation of Loss, Estoppel
Building and Construction Law Contract Law Civil Procedure Statutory Warranties (home Building Act) Damages (assessment and Remoteness) Reasonableness of Settlement Subcontractor Liability Mitigation of Loss +1 more

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Parties

Macquarie Grove Homes Pty Ltd

Appellant in AP 15/65214; Respondent in AP 15/65327

Tony Aylott & Glen Aylott t/as T&G Bricklaying

Respondents in AP 15/65214; Appellants in AP 15/65327

Procedural Posture

Internal Appeal / Appeal Panel Decision on Appeals From Tribunal Decision

Legal Issues

  1. 1 Whether the statutory warranties in section 18B of the Home Building Act 1989 were implied into the sub-contract between the head contractor and subcontractor
  2. 2 Whether the amount paid to homeowners pursuant to consent orders was a reasonable and necessary measure of damages recoverable by the contractor from the subcontractor
  3. 3 Whether legal costs incurred by the contractor in defending proceedings against the homeowner were too remote to be recovered as damages from the subcontractor

Ratio Decidendi

Both appeals are dismissed: the Tribunal correctly found the settlement amount for rectification (Acratex) was a reasonable measure of damages caused by T&G's breach of statutory warranty implied by the Home Building Act, but Macquarie failed to provide sufficient and credible evidence to quantify its claim for legal costs as damages, despite such costs not being too remote in principle. There was no error in the Tribunal’s findings on jurisdiction, mitigation, or estoppel. Failure by T&G to be joined to the CTTT proceedings did not deprive Macquarie of its claim.

Court Disposition

Both appeals dismissed.

Orders

  • In matter AP 15/65214 the appeal is dismissed.
  • In matter AP 15/65327, in so far as required, leave to appeal is granted but the appeal is dismissed.