Concourt Pty Ltd v Victoria Mary Kerr; Victoria Mary Kerr v Concourt Pty Ltd [2014] NSWCATCD 256

Concourt Pty Ltd v Victoria Mary Kerr; Victoria Mary Kerr v Concourt Pty Ltd [2014] NSWCATCD 256

The Tribunal held that most of the owner's claims for defective and incomplete work were proven, including with respect to the stairs, flooring, and sliding doors, as the builder failed to demonstrate written variations or to refute evidence of non-compliance. The builder's claim for outstanding sums was reduced according to admissions and agreement in the Variation Letter, with interest calculated from practical completion as no further valid variations or offsets applied. The owner's claim for liquidated damages failed as the purported variation was not an effective contractual variation, and the agreement lacked necessary mechanisms for extensions or apportionment of delays, following...

Parties
Applicant and Cross Respondent: Concourt Pty Ltd; Respondent and Cross Applicant: Victoria Mary Kerr
Jurisdiction
Australia
Judgment Date
13 November 2014
Procedural Posture
Civil Tribunal Proceedings / Final Judgment
Outcome
Claims partially successful for both parties; net award to owner
Legal Topics
Breach of Building Contract, Defective and Incomplete Works, Liquidated Damages, Retention Moneys, Rectification of Works, Variation of Contract
Construction Law Contract Law Home Building Disputes Breach of Building Contract Defective and Incomplete Works Liquidated Damages Retention Moneys Rectification of Works +1 more

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Parties

Concourt Pty Ltd

Applicant and Cross Respondent

Victoria Mary Kerr

Respondent and Cross Applicant

Procedural Posture

Civil Tribunal Proceedings / Final Judgment

Legal Issues

  1. 1 Whether the builder is liable for defective stairs, flooring, sliding doors, and other incomplete building works; whether the owner is entitled to liquidated damages under the contract or the variation letter; the extent of offsetting claims between builder and owner; calculation of sums payable on proven contractual breaches.

Ratio Decidendi

The Tribunal held that most of the owner's claims for defective and incomplete work were proven, including with respect to the stairs, flooring, and sliding doors, as the builder failed to demonstrate written variations or to refute evidence of non-compliance. The builder's claim for outstanding sums was reduced according to admissions and agreement in the Variation Letter, with interest calculated from practical completion as no further valid variations or offsets applied. The owner's claim for liquidated damages failed as the purported variation was not an effective contractual variation, and the agreement lacked necessary mechanisms for extensions or apportionment of delays, following...

Court Disposition

Claims partially successful for both parties; net award to owner

Orders

  • Victoria Mary Kerr is indebted to Concourt Pty Ltd in the sum of $44,651.83.
  • Concourt Pty Ltd is indebted to Victoria Mary Kerr in the sum of $76,158.50.