Javam v Al-Amin [2020] NSWCATAP 113

Javam v Al-Amin [2020] NSWCATAP 113

The appeal was dismissed because the Tribunal's findings that the Builder failed to progress the works, failed to pay the architect, was in substantial breach, and repudiated the contract were reasonably open on the evidence and disclosed no error of law. The architect's work was within the broad dispute resolution role conferred by the addendum. Clause 30 did not preclude termination for repudiation or the Homeowners' relief. The breach notice did not prevent the Homeowners from terminating for continuing repudiatory conduct. The finding of total failure of consideration was open given the uncertified and non-compliant slab and dismantled frame. The alleged procedural unfairness was not...

Jurisdiction
Australia
Judgment Date
17 June 2020
Procedural Posture
Appeal From a Decision of the Consumer & Commercial Division of the NSW Civil & Administrative Tribunal Exercising Jurisdiction Under the Home Building Act 1989 (nsw) / Appeal Panel Decision
Outcome
Appeal dismissed with costs to the Respondents.
Legal Topics
['home Building Act' 'substantial Breach' 'repudiation' 'termination of Contract' 'failure to Progress Building Works' 'failure of Consideration' 'procedural Fairness' 'no Evidence Ground' 'leave to Appeal' 'costs']
['contract Law' 'home Building' 'civil Procedure' 'administrative Law'] ['home Building Act' 'substantial Breach' 'repudiation' 'termination of Contract' 'failure to Progress Building Works' 'failure of Consideration' 'procedural Fairness' 'no Evidence Ground' 'leave to Appeal' 'costs']

Case Brief

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Procedural Posture

Appeal From a Decision of the Consumer & Commercial Division of the NSW Civil & Administrative Tribunal Exercising Jurisdiction Under the Home Building Act 1989 (nsw) / Appeal Panel Decision

Legal Issues

  1. 1 ["Whether there was evidence to support the Tribunal's findings that the Builder failed to progress the works and failed to pay the architect's fees." 'Whether the architect acted within the scope of his role under the addendum.' 'Whether the Builder was in substantial breach of the contract and addendum.' "Whether clause 30 of the contract affected the Homeowners' entitlement after termination." 'Whether the Builder repudiated the contract and whether the Homeowners validly terminated at common law or under clause 27.' 'Whether the Tribunal erred in concluding that the slab was of no value and that there was a total failure of consideration.' 'Whether the Builder was denied procedural fairness in relation to evidence and cross-examination.' 'Whether leave to appeal should be granted on any ground involving weight of evidence.']

Ratio Decidendi

The appeal was dismissed because the Tribunal's findings that the Builder failed to progress the works, failed to pay the architect, was in substantial breach, and repudiated the contract were reasonably open on the evidence and disclosed no error of law. The architect's work was within the broad dispute resolution role conferred by the addendum. Clause 30 did not preclude termination for repudiation or the Homeowners' relief. The breach notice did not prevent the Homeowners from terminating for continuing repudiatory conduct. The finding of total failure of consideration was open given the uncertified and non-compliant slab and dismantled frame. The alleged procedural unfairness was not...

Court Disposition

Appeal dismissed with costs to the Respondents.

Orders

  • ['Appeal dismissed.' "The Appellant is to pay to the Respondent the Respondents' costs of the appeal in an amount as agreed or as assessed."]