Anel Kurtovic v Irfan Durmo [2015] NSWCATAP 73

Anel Kurtovic v Irfan Durmo [2015] NSWCATAP 73

The appeal was allowed in part because the Tribunal below failed to give adequate reasons for including disputed extra charges and for treating five supplier payments as payments made at the Builder's request, and because it erred in calculating damages by not comparing the Owner's total cost of the fixed price component with the fixed contract price. The defective wall issue failed because the rectified defects were in the concrete block wall component covered by the contract, and the soil removal issue failed because the Builder sought to raise a new point on appeal that could not properly be entertained.

Jurisdiction
Australia
Judgment Date
05 May 2015
Procedural Posture
Appeal in a Home Building Dispute / Appeal Panel Decision From the Consumer and Commercial Division of the Civil and Administrative Tribunal
Outcome
Appeal allowed; orders below set aside; substituted order for payment of $27,134.00 with specified quantum issues remitted for reconsideration.
Legal Topics
['residential Building Work' 'unlicensed Contractor' 'breach of Contract Damages' 'adequacy of Reasons' 'new Point on Appeal' 'quantum of Damages']
['home Building' 'civil Procedure' 'contract' 'appeals'] ['residential Building Work' 'unlicensed Contractor' 'breach of Contract Damages' 'adequacy of Reasons' 'new Point on Appeal' 'quantum of Damages']

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Procedural Posture

Appeal in a Home Building Dispute / Appeal Panel Decision From the Consumer and Commercial Division of the Civil and Administrative Tribunal

Legal Issues

  1. 1 ['Whether the Tribunal below failed to give adequate reasons for allowing extra charges in the cost to complete the contracted works.' 'Whether the Builder was liable for the cost of rectifying defective wall work.' 'Whether the Builder could raise on appeal a new contention about doubling the number of soil removal loads charged under the contract.' "Whether the Tribunal below gave adequate reasons for finding that five payments to suppliers were made at the Builder's request as part payment of the contracted works." 'Whether the Tribunal below erred in calculating damages by treating the whole cost to complete the fixed price component of the works as recoverable rather than calculating the excess over the fixed contract price.']

Ratio Decidendi

The appeal was allowed in part because the Tribunal below failed to give adequate reasons for including disputed extra charges and for treating five supplier payments as payments made at the Builder's request, and because it erred in calculating damages by not comparing the Owner's total cost of the fixed price component with the fixed contract price. The defective wall issue failed because the rectified defects were in the concrete block wall component covered by the contract, and the soil removal issue failed because the Builder sought to raise a new point on appeal that could not properly be entertained.

Court Disposition

Appeal allowed; orders below set aside; substituted order for payment of $27,134.00 with specified quantum issues remitted for reconsideration.

Orders

  • ['The appeal is allowed.' 'The orders made by the Tribunal below requiring that the Appellant pay the Respondent the sum of $34,129.24 be set aside.' 'In substitution for the order made by the Tribunal below order that the Appellant pay the Respondent the sum of $27,134.00 and such further damages, if any, as may be...