Kapeller v BH Australia Pty Ltd [2020] NSWCATCD 20

Kapeller v BH Australia Pty Ltd [2020] NSWCATCD 20

The owners were entitled to terminate at common law due to the builder's serious breach of intermediate contractual terms, specifically abandonment of the works and ceasing to carry out building work without contractual justification, which went to the root of the contract.

Jurisdiction
Australia
Judgment Date
08 January 2020
Procedural Posture
Home Building Dispute / Redetermination After Remittal From Appeal
Outcome
Owners' termination of contract upheld; builder ordered to pay owners agreed sums for incomplete and defective work; hearing dispensed with; orders made for costs process.
Legal Topics
['repudiation of Contract' 'termination for Breach' 'due Diligence in Building Contracts' 'abandonment of Works']
['building and Construction' 'contract'] ['repudiation of Contract' 'termination for Breach' 'due Diligence in Building Contracts' 'abandonment of Works']

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Procedural Posture

Home Building Dispute / Redetermination After Remittal From Appeal

Legal Issues

  1. 1 ['Whether the owners properly terminated the contract or repudiated it' 'Whether the builder repudiated the contract by abandoning the works' 'Whether alleged breaches justified termination' 'Valuation of incomplete and defective works' 'Whether builder owed money under contract' 'Eligibility of builder to complete or rectify works']

Ratio Decidendi

The owners were entitled to terminate at common law due to the builder's serious breach of intermediate contractual terms, specifically abandonment of the works and ceasing to carry out building work without contractual justification, which went to the root of the contract.

Court Disposition

Owners' termination of contract upheld; builder ordered to pay owners agreed sums for incomplete and defective work; hearing dispensed with; orders made for costs process.

Orders

  • ['A hearing in respect of Applications HB 19/0928 & HB 19/09300 is dispensed with under section 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).' 'BH Australia Constructions Pty Ltd must pay Phillip Kapeller and Rachael Cesnik the sum of $191,336.00 immediately.' 'Any party wishing to bring a costs...