Atherton v T M Building Consultants Pty Ltd; T M Building Consultants Pty Ltd v Atherton [2014] NSWCATCD 255

Atherton v T M Building Consultants Pty Ltd; T M Building Consultants Pty Ltd v Atherton [2014] NSWCATCD 255

On the expert evidence and agreed items, the Tribunal reconciled the adjusted contract sum, variations, credits, completion costs and rectification costs and found a net amount of $3,843.20 due from the owners to the builder. The owners' substantial claims were allowed only to the extent proved and reasonable, with no allowance for neighbour claims, absence of warranties, certificates claim, or liquidated damages. The builder was ordered to provide warranties and certificates within its possession or control.

Jurisdiction
Australia
Judgment Date
17 October 2014
Procedural Posture
Home Building Contract Dispute Involving Builder's Claim and Owners' Cross Claim / Principal Judgment After Hearing
Outcome
Net judgment for T M Building Consultants Pty Ltd in the sum of $3,843.20, with ancillary orders for provision of warranties and certificates and directions concerning costs.
Legal Topics
['termination of Contract' 'contract Variations' 'defective and Incomplete Building Work' 'reasonable Rectification Costs' 'warranties and Certification' 'liquidated Damages' 'quantum Meruit']
['building and Construction' 'contract Law' 'consumer and Commercial Law'] ['termination of Contract' 'contract Variations' 'defective and Incomplete Building Work' 'reasonable Rectification Costs' 'warranties and Certification' 'liquidated Damages' 'quantum Meruit']

Case Brief

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Procedural Posture

Home Building Contract Dispute Involving Builder's Claim and Owners' Cross Claim / Principal Judgment After Hearing

Legal Issues

  1. 1 ['What amount, if any, was due to the builder for work executed, variations and extra work under the home building contract.' 'What amounts should be allowed to the owners for incomplete work, defective work and rectification costs.' 'Whether the owners were entitled to damages or diminution in value for absence of warranties, as-built plans and certificates.' 'Whether the owners were entitled to liquidated damages for delay.' 'Whether the builder was required to provide warranties and certificates in its possession or control.']

Ratio Decidendi

On the expert evidence and agreed items, the Tribunal reconciled the adjusted contract sum, variations, credits, completion costs and rectification costs and found a net amount of $3,843.20 due from the owners to the builder. The owners' substantial claims were allowed only to the extent proved and reasonable, with no allowance for neighbour claims, absence of warranties, certificates claim, or liquidated damages. The builder was ordered to provide warranties and certificates within its possession or control.

Court Disposition

Net judgment for T M Building Consultants Pty Ltd in the sum of $3,843.20, with ancillary orders for provision of warranties and certificates and directions concerning costs.

Orders

  • ['Mr and Mrs Atherton are to pay to T.M Building Consultants Pty Ltd the sum of $3,843.20 on or before 12 November 2014.' 'T M Building Consultants Pty Ltd are to provide to Mr & Mrs Atherton all warranties and certificates in relation to the work in its possession or control on or before 28 October 2014.' 'The...