Bailey v Champion Homes Sales Pty Ltd [2017] NSWCATCD 91

Bailey v Champion Homes Sales Pty Ltd [2017] NSWCATCD 91

The owners had satisfied the contractual commencement requirements by 14 August 2014, so the builder was not entitled to the 3.75% contract price adjustment, and the unsigned adjustment was in any event ineffective. The builder failed to prove contractual extensions of time sufficient to move practical completion beyond 14 March 2016 and was liable for delay. The disputed variations and price adjustments were either for work already included in the contract, not properly evidenced, not signed as required, or otherwise unjustified. Payments made under protest were recoverable as damages for breach of contract or in restitution, and the applicants were entitled to their final claim less...

Jurisdiction
Australia
Judgment Date
15 November 2017
Procedural Posture
Home Building Dispute / Principal Judgment After Final Hearing in the Consumer and Commercial Division of the Civil and Administrative Tribunal of New South Wales
Outcome
Application substantially allowed; respondent ordered to pay the applicants $80,433 and costs.
Legal Topics
['variations' 'contract Price Adjustments' 'contract Period' 'extensions of Time' 'liquidated Damages' 'statutory Warranties' 'money Had and Received' 'mistake' 'total Failure of Consideration' 'calderbank Offer' 'indemnity Costs']
['home Building' 'contract Law' 'restitution' 'consumer and Commercial' 'costs'] ['variations' 'contract Price Adjustments' 'contract Period' 'extensions of Time' 'liquidated Damages' 'statutory Warranties' 'money Had and Received' 'mistake' 'total Failure of Consideration' 'calderbank Offer' 'indemnity Costs']

Case Brief

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Procedural Posture

Home Building Dispute / Principal Judgment After Final Hearing in the Consumer and Commercial Division of the Civil and Administrative Tribunal of New South Wales

Legal Issues

  1. 1 ['Whether Contract Price Adjustment No 3 for a 3.75% increase was contractually justified under special condition 44.4.' 'Whether the owners had satisfied the contractual requirements for commencement of building works and the contract period before the expiry of the works commencement period.' 'Whether the builder proved contractual extensions of time for adverse weather, late payment and industry shutdown so as to avoid liability for delay.' 'Whether disputed variations and contract price adjustments were within the contract works, properly evidenced, signed or otherwise justified under the contract.' 'Whether the owners could recover payments made for unjustified variations or price adjustments as damages for breach of contract or in restitution.' 'Whether the owners were entitled to damages for delay and defective or incomplete work.' 'Whether costs should follow the event and be awarded on an indemnity basis after the Calderbank offer.']

Ratio Decidendi

The owners had satisfied the contractual commencement requirements by 14 August 2014, so the builder was not entitled to the 3.75% contract price adjustment, and the unsigned adjustment was in any event ineffective. The builder failed to prove contractual extensions of time sufficient to move practical completion beyond 14 March 2016 and was liable for delay. The disputed variations and price adjustments were either for work already included in the contract, not properly evidenced, not signed as required, or otherwise unjustified. Payments made under protest were recoverable as damages for breach of contract or in restitution, and the applicants were entitled to their final claim less...

Court Disposition

Application substantially allowed; respondent ordered to pay the applicants $80,433 and costs.

Orders

  • ['Respondent to pay applicants $80,433 on or before 22 November 2017.' "Respondent to pay applicants' costs of the proceedings as agreed or assessed on the ordinary basis to and including 4 April 2017 and on the indemnity basis on and from 5 April 2017."]