Brice & Ors v Biruski [2010] NSWDC 267

Brice & Ors v Biruski [2010] NSWDC 267

The defendant was in breach of contract and deed of variation due to failure to complete works within specified periods and to reasonable standard, and was not entitled to claimed extensions of time, nor to suspend work or retain further payment. Plaintiffs were entitled to terminate the contract and claim damages for completion and delay to the point of completion, but not for subsequent decline in property value as such loss was not within the contemplation of the parties at contract formation.

Parties
First Plaintiff and First Cross Defendant: James Patrick Brice; Second Plaintiff and Second Cross Defendant: Catherine Ann Brice; Defendant and Cross Claimant: Vlado Biruski
Jurisdiction
Australia
Judgment Date
26 November 2010
Procedural Posture
Civil / Judgment on Liability and Adjournment for Assessment of Damages, Costs, and Interest; Later Consent Orders and Judgment for Cross Claimant
Outcome
Proceedings adjourned for assessment of damages, costs, and interest. Subsequent judgment for cross claimant by consent orders.
Legal Topics
Breach of Contract, Negligence, Delay in Completion, Assessment of Damages, Cross Claim, Termination of Contract
Building and Construction Breach of Contract Negligence Delay in Completion Assessment of Damages Cross Claim Termination of Contract

Case Brief

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Parties

James Patrick Brice

First Plaintiff and First Cross Defendant

Catherine Ann Brice

Second Plaintiff and Second Cross Defendant

Vlado Biruski

Defendant and Cross Claimant

Procedural Posture

Civil / Judgment on Liability and Adjournment for Assessment of Damages, Costs, and Interest; Later Consent Orders and Judgment for Cross Claimant

Legal Issues

  1. 1 Whether the defendant breached the building contract and deed of variation
  2. 2 Whether the plaintiffs were entitled to terminate the contract
  3. 3 Whether the defendant was entitled to extensions of time or payment for variations

Ratio Decidendi

The defendant was in breach of contract and deed of variation due to failure to complete works within specified periods and to reasonable standard, and was not entitled to claimed extensions of time, nor to suspend work or retain further payment. Plaintiffs were entitled to terminate the contract and claim damages for completion and delay to the point of completion, but not for subsequent decline in property value as such loss was not within the contemplation of the parties at contract formation.

Court Disposition

Proceedings adjourned for assessment of damages, costs, and interest. Subsequent judgment for cross claimant by consent orders.

Orders

  • Proceedings adjourned for calculation of damages to be paid to the plaintiffs and to deal with issues of costs and interest.
  • Reasons published.