Burns v Hogg Constructions Pty Ltd [2021] NSWCATAP 417

Burns v Hogg Constructions Pty Ltd [2021] NSWCATAP 417

Appeal Panel held clause 2A did not relieve owner from payment for work performed by builder; reporting failures or capacity to pay only affect future scope adjustment, not payment for completed work. No error in awarding damages (expectation margin) to builder on owner's default. No misrepresentation proven. No substantial miscarriage of justice; leave to appeal refused and appeal dismissed.

Jurisdiction
Australia
Judgment Date
23 December 2021
Procedural Posture
Internal Appeal From Tribunal Decision (consumer and Commercial Division) / Appeal Panel – Application for Leave to Appeal and Appeal
Outcome
Application for leave to appeal refused; appeal dismissed.
Legal Topics
['cost Plus Contracts' 'repudiation' 'measure of Damages' 'statutory Warranties' 'misleading and Deceptive Conduct' 'implied Terms' 'contract Interpretation']
['building and Construction' 'contract Law' 'consumer Law'] ['cost Plus Contracts' 'repudiation' 'measure of Damages' 'statutory Warranties' 'misleading and Deceptive Conduct' 'implied Terms' 'contract Interpretation']

Case Brief

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Procedural Posture

Internal Appeal From Tribunal Decision (consumer and Commercial Division) / Appeal Panel – Application for Leave to Appeal and Appeal

Legal Issues

  1. 1 ["Whether clauses 2A(iii) and 2A(b)-(c) qualify owner's obligation to pay under clause 17" 'Entitlement to expectation damages on termination' 'Existence and effect of implied terms as alleged by owner' 'Application of reporting requirements under clauses 1(e), 1(f)' "Builder's alleged misleading and deceptive conduct"]

Ratio Decidendi

Appeal Panel held clause 2A did not relieve owner from payment for work performed by builder; reporting failures or capacity to pay only affect future scope adjustment, not payment for completed work. No error in awarding damages (expectation margin) to builder on owner's default. No misrepresentation proven. No substantial miscarriage of justice; leave to appeal refused and appeal dismissed.

Court Disposition

Application for leave to appeal refused; appeal dismissed.

Orders

  • ['Application for leave to appeal refused.' 'Appeal dismissed.' "Unless further submissions are filed, appellant to pay respondent's costs of the appeal as agreed or assessed." 'Parties may file submissions regarding costs within 14 days.' 'Submissions in response permitted within a further 14 days.' 'Any...