Simmonds v Rust; Rust v Simmonds [2018] NSWCATCD 75

Simmonds v Rust; Rust v Simmonds [2018] NSWCATCD 75

The owners were entitled to terminate the contract due to the builder's substantial breach in failing to complete works within the contractual timeframe, after deficient progress in delay and notices. The builder's progress claim 6 was for a stage that was substantially complete and therefore payable without the right of set-off per contract. Owners entitled to cost to complete and rectify less unpaid contract balance and ineligible additions; builder entitled to progress payment 6 and interest.

Jurisdiction
Australia
Judgment Date
29 November 2018
Procedural Posture
Building Dispute / Final Decision
Outcome
Cross-claims largely allowed in part for both sides; net sum in favour of owners.
Legal Topics
['home Building Contract' 'progress Payments' 'suspension of Work' 'notice of Breach' 'termination of Contract' 'damages for Completion and Rectification' 'defective Work']
['building and Construction' 'contracts'] ['home Building Contract' 'progress Payments' 'suspension of Work' 'notice of Breach' 'termination of Contract' 'damages for Completion and Rectification' 'defective Work']

Case Brief

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Procedural Posture

Building Dispute / Final Decision

Legal Issues

  1. 1 ['Whether the builder was entitled to payment of the sixth progress claim' 'Whether the builder lawfully suspended building works under the contract' 'Whether the owners validly terminated the building contract for substantial breach' 'Calculation of damages for owners after termination' 'Entitlement of builder to damages and interest']

Ratio Decidendi

The owners were entitled to terminate the contract due to the builder's substantial breach in failing to complete works within the contractual timeframe, after deficient progress in delay and notices. The builder's progress claim 6 was for a stage that was substantially complete and therefore payable without the right of set-off per contract. Owners entitled to cost to complete and rectify less unpaid contract balance and ineligible additions; builder entitled to progress payment 6 and interest.

Court Disposition

Cross-claims largely allowed in part for both sides; net sum in favour of owners.

Orders

  • ['Christopher John Rust must pay Benjamin Frank Hind Simmonds and Jessica Marion Simmonds $161,437.02 in HB 17/29871.' 'Benjamin Frank Hind Simmonds and Jessica Marion Simmonds must pay Christopher John Rust $37,663.03 in HB 18/15368.' 'Any costs application must be made within 14 days with set procedures for...