Issa v K & K Quality Constructions Pty Ltd [2020] NSWCATAP 74

Issa v K & K Quality Constructions Pty Ltd [2020] NSWCATAP 74

The Tribunal failed to properly consider whether the legal requirements under the Home Building Act for payment, including the necessity of a contract of insurance and a written contract, were met and did not make findings on whether it was unconscionable for the homeowner to retain the benefit of preliminary work without payment. As a result, its order allowing the builder to recover on a quantum meruit basis cannot stand.

Parties
Appellant: Albert Issa; Respondent: K & K Quality Constructions Pty Ltd
Jurisdiction
Australia
Judgment Date
04 May 2020
Procedural Posture
Appeal / Appellate Decision
Outcome
Appeal allowed; orders set aside; proceedings remitted to differently constituted Tribunal; trust money returned to appellant.
Legal Topics
Quantum Meruit, Jurisdiction Under Home Building Act, Preliminary Work Without Contract, Effect of Absence of Contract, Procedural Fairness
Building and Construction Law Consumer Law Quantum Meruit Jurisdiction Under Home Building Act Preliminary Work Without Contract Effect of Absence of Contract Procedural Fairness

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 11 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Albert Issa

Appellant

K & K Quality Constructions Pty Ltd

Respondent

Procedural Posture

Appeal / Appellate Decision

Legal Issues

  1. 1 Whether builder can recover on quantum meruit where no written contract exists
  2. 2 Whether s 94 of the Home Building Act 1989 (NSW) applies in the absence of a written contract
  3. 3 Whether Tribunal failed to consider unconscionability in allowing builder’s claim

Ratio Decidendi

The Tribunal failed to properly consider whether the legal requirements under the Home Building Act for payment, including the necessity of a contract of insurance and a written contract, were met and did not make findings on whether it was unconscionable for the homeowner to retain the benefit of preliminary work without payment. As a result, its order allowing the builder to recover on a quantum meruit basis cannot stand.

Court Disposition

Appeal allowed; orders set aside; proceedings remitted to differently constituted Tribunal; trust money returned to appellant.

Orders

  • The appeal is allowed.
  • The orders made by the Tribunal on 5 November 2019 are set aside.