Guy and Anor v K J & W E McIlveen t/as K J McIlveen Builders [2016] NSWCATCD 77

Guy and Anor v K J & W E McIlveen t/as K J McIlveen Builders [2016] NSWCATCD 77

Because the builder had not complied with the contract's written variation procedure, recovery for variations depended on proof of fair and reasonable remuneration for benefits accepted by the applicants. The Tribunal allowed only those variation amounts established on the evidence, allowed limited rectification and associated costs to the applicants, and allowed delay-related hire costs for 20 weeks where the continued dispute and withholding of keys prevented occupation. The final orders required the applicants to pay the respondent a net sum and each party to bear their own costs.

Jurisdiction
Australia
Judgment Date
15 September 2016
Procedural Posture
Home Building Dispute in the Consumer and Commercial Division of the Civil and Administrative Tribunal of New South Wales / Principal Judgment After Hearings on 5 April 2016 and 30 June 2016
Outcome
Application resolved by monetary order in favour of the respondent builder, with no order for costs beyond each party bearing their own costs.
Legal Topics
['variations Not in Writing' 'quantum Meruit' 'rectification of Defective Works' 'delay Compensation' 'costs']
['home Building' 'consumer Law' 'contract Law' 'restitution'] ['variations Not in Writing' 'quantum Meruit' 'rectification of Defective Works' 'delay Compensation' 'costs']

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Procedural Posture

Home Building Dispute in the Consumer and Commercial Division of the Civil and Administrative Tribunal of New South Wales / Principal Judgment After Hearings on 5 April 2016 and 30 June 2016

Legal Issues

  1. 1 ['Whether the respondent builder could recover payment for variations where the contractual procedure for written and signed variations had not been complied with.' 'What amount, if any, was recoverable by the builder on a quantum meruit for variation works accepted by the owners.' 'Whether the applicants were entitled to compensation for rectification or completion of defective works.' 'Whether the applicants were entitled to compensation for additional hire costs caused by delay in obtaining occupation or access to the property.']

Ratio Decidendi

Because the builder had not complied with the contract's written variation procedure, recovery for variations depended on proof of fair and reasonable remuneration for benefits accepted by the applicants. The Tribunal allowed only those variation amounts established on the evidence, allowed limited rectification and associated costs to the applicants, and allowed delay-related hire costs for 20 weeks where the continued dispute and withholding of keys prevented occupation. The final orders required the applicants to pay the respondent a net sum and each party to bear their own costs.

Court Disposition

Application resolved by monetary order in favour of the respondent builder, with no order for costs beyond each party bearing their own costs.

Orders

  • ['The applicants are to pay the respondent the sum of $5,489.65.' 'Each party is to bear their own costs.']