Cuaresma v Delta Constructions Australia Pty Ltd and Nasr [2017] NSWCATCD 67

Cuaresma v Delta Constructions Australia Pty Ltd and Nasr [2017] NSWCATCD 67

The first respondent, by its conduct, armed the second respondent with indicia of authority (managerial appointment, business cards, bank signatory status, licence, etc), and is liable as a principal for the contract entered into by the second respondent with the applicant. The company is estopped from denying the contract because it equipped Nasr to act with ostensible authority. Damages are appropriate as rectification is not suitable. The quantum for rectification (excluding solatium) is proven and undisputed.

Parties
Applicant: Cecilia Cuaresma; First Respondent: Delta Constructions Australia Pty Ltd; Second Respondent: Fred Nasr
Jurisdiction
Australia
Judgment Date
23 August 2017
Procedural Posture
Residential Building Claim / Defective Work / Final Determination and Orders
Outcome
Application against the first respondent succeeds; orders for payment of damages; application otherwise dismissed.
Legal Topics
Defective Work, Ostensible Authority, Statutory Warranties, Liability for Agent's Acts, Damages for Breach of Statutory Warranties, Money Order Versus Rectification Order, Estoppel, Admissibility of Conviction
Building and Construction Law Contract Law Agency Consumer Law Defective Work Ostensible Authority Statutory Warranties Liability for Agent's Acts +4 more

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Parties

Cecilia Cuaresma

Applicant

Delta Constructions Australia Pty Ltd

First Respondent

Fred Nasr

Second Respondent

Procedural Posture

Residential Building Claim / Defective Work / Final Determination and Orders

Legal Issues

  1. 1 Whether the first respondent is liable for the defects under statutory warranties
  2. 2 Whether the second respondent acted with authority (actual, apparent, or ostensible) of the first respondent
  3. 3 Whether a money order or a rectification order is appropriate for the defective work

Ratio Decidendi

The first respondent, by its conduct, armed the second respondent with indicia of authority (managerial appointment, business cards, bank signatory status, licence, etc), and is liable as a principal for the contract entered into by the second respondent with the applicant. The company is estopped from denying the contract because it equipped Nasr to act with ostensible authority. Damages are appropriate as rectification is not suitable. The quantum for rectification (excluding solatium) is proven and undisputed.

Court Disposition

Application against the first respondent succeeds; orders for payment of damages; application otherwise dismissed.

Orders

  • The first respondent, Delta Constructions Australia Pty Ltd, shall pay the applicant, Cecilia Cuaresma, the sum of $212,286.00 on or before 31 August 2017.
  • If the parties are unable to agree on the issue of costs any party seeking a costs order is granted leave to file and serve a short written submission on that issue only within 21 days of the date of these orders.