Builtex Constructions Pty Ltd v He [2019] NSWCATAP 95

Builtex Constructions Pty Ltd v He [2019] NSWCATAP 95

The owner validly terminated the contract by issuing compliant notices of dispute and default according to contractual requirements, and was not in fundamental breach regarding the bank guarantee; the builder's quantum meruit claim fails as there was no valid repudiation. The costs discretion was properly exercised and costs should not be apportioned, with indemnity costs justified by builder’s unreasonable refusal of a genuine Calderbank settlement offer. Leave to appeal is refused, and appeal dismissed.

Parties
Appellant: Builtex Constructions Pty Ltd; Respondent: Katrina Wai San He
Jurisdiction
Australia
Judgment Date
18 April 2019
Procedural Posture
Appeal / Final Judgment (orders and Reasons)
Outcome
Leave to appeal refused; appeal dismissed; costs awarded against appellant.
Legal Topics
Termination of Contract, Statutory Warranties, Notice Requirements, Retention and Bank Guarantee, Quantum Meruit, Costs and Costs Discretion
Contract Law Building and Construction Termination of Contract Statutory Warranties Notice Requirements Retention and Bank Guarantee Quantum Meruit Costs and Costs Discretion

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Parties

Builtex Constructions Pty Ltd

Appellant

Katrina Wai San He

Respondent

Procedural Posture

Appeal / Final Judgment (orders and Reasons)

Legal Issues

  1. 1 Whether the owner validly terminated the contract
  2. 2 Whether valid notice of dispute and notice of default were given in accordance with contractual requirements
  3. 3 Whether the contract was repudiated

Ratio Decidendi

The owner validly terminated the contract by issuing compliant notices of dispute and default according to contractual requirements, and was not in fundamental breach regarding the bank guarantee; the builder's quantum meruit claim fails as there was no valid repudiation. The costs discretion was properly exercised and costs should not be apportioned, with indemnity costs justified by builder’s unreasonable refusal of a genuine Calderbank settlement offer. Leave to appeal is refused, and appeal dismissed.

Court Disposition

Leave to appeal refused; appeal dismissed; costs awarded against appellant.

Orders

  • Leave to appeal is refused.
  • The appeal is dismissed.