Gorr v Minkley [2017] NSWCATAP 13

Gorr v Minkley [2017] NSWCATAP 13

The Tribunal erred in calculating the adjusted contract sum. Although it found that electrical work had been removed from the contract, it failed to deduct the full $4,400.00 electrical provisional allowance, instead effectively allowing only $440.00. The correct adjusted contract sum was $147,510.00, and after deducting $142,407.30 already paid, the unpaid balance to be set off against damages of $14,431.31 was $5,102.70. The appellants were therefore entitled to a net award of $9,328.61. No further deduction for surveying costs was supported by the Tribunal's reasons or the evidence on appeal.

Jurisdiction
Australia
Judgment Date
19 January 2017
Procedural Posture
Home Building Appeal / Appeal Panel Decision on Extension of Time, Leave to Appeal and Substantive Appeal
Outcome
Time to appeal extended; leave to appeal granted to the extent necessary; appeal allowed in part; order for payment varied; appeal otherwise dismissed with each party to pay their own costs.
Legal Topics
['residential Building Contract' 'statutory Warranties' 'defective Work' 'provisional Allowances' 'variation of Contract' 'set Off' 'extension of Time to Appeal' 'leave to Appeal']
['home Building' 'building and Construction' 'administrative Law' 'contract Law' 'damages'] ['residential Building Contract' 'statutory Warranties' 'defective Work' 'provisional Allowances' 'variation of Contract' 'set Off' 'extension of Time to Appeal' 'leave to Appeal']

Case Brief

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Procedural Posture

Home Building Appeal / Appeal Panel Decision on Extension of Time, Leave to Appeal and Substantive Appeal

Legal Issues

  1. 1 ['Whether time to appeal should be extended where the appeal was filed 5 days late.' 'Whether leave to appeal should be granted to the extent necessary.' "Whether the Tribunal erred in calculating the adjusted contract sum and the unpaid balance to be set off against the appellants' damages." 'Whether the appellants were entitled to be reimbursed $4,400.00 for electrical work.' 'Whether a $440.00 surveying costs allowance should be deducted from the original contract sum.']

Ratio Decidendi

The Tribunal erred in calculating the adjusted contract sum. Although it found that electrical work had been removed from the contract, it failed to deduct the full $4,400.00 electrical provisional allowance, instead effectively allowing only $440.00. The correct adjusted contract sum was $147,510.00, and after deducting $142,407.30 already paid, the unpaid balance to be set off against damages of $14,431.31 was $5,102.70. The appellants were therefore entitled to a net award of $9,328.61. No further deduction for surveying costs was supported by the Tribunal's reasons or the evidence on appeal.

Court Disposition

Time to appeal extended; leave to appeal granted to the extent necessary; appeal allowed in part; order for payment varied; appeal otherwise dismissed with each party to pay their own costs.

Orders

  • ['The time to appeal is extended to 17 October 2016.' 'To the extent necessary, leave to appeal is granted and the appeal is allowed in part.' 'Order 1 made by the Tribunal on 7 September 2016 is set aside and in lieu thereof the following order is made: The respondent is to pay the applicants the sum of $9,328.61...