Brown v Max Pattison Pty Ltd and Travis-Almond [2023] NSWCATCD 86

Brown v Max Pattison Pty Ltd and Travis-Almond [2023] NSWCATCD 86

The second respondent personally contracted with the owner, failed within a reasonable time to complete residential building work for a kitchen, removed the existing kitchen and left an unfinished non-operative mess with damage. The contract was an entire fixed-price contract and the progress payments were on account only. Because the owner validly terminated for breach and there was a substantial failure of consideration, the owner was entitled to repayment of the $32,800 paid and $1,058 for restoration damage, totalling $33,858, from the second respondent.

Jurisdiction
Australia
Judgment Date
21 August 2023
Procedural Posture
Home Building Claim Concerning Installation of a Kitchen and Refund of Monies Paid / Final Decision
Outcome
Application allowed against the second respondent; no order as to costs subject to any alternative costs application.
Legal Topics
['rights on Termination of Contract' 'entire Contract With Progress Payments on Account' 'substantial Failure of Consideration' 'refund of Monies Paid' 'homeowners Warranty Insurance' 'unlicensed Residential Building Work']
['real Property' 'building and Construction' 'home Building' 'contract Law'] ['rights on Termination of Contract' 'entire Contract With Progress Payments on Account' 'substantial Failure of Consideration' 'refund of Monies Paid' 'homeowners Warranty Insurance' 'unlicensed Residential Building Work']

Case Brief

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Procedural Posture

Home Building Claim Concerning Installation of a Kitchen and Refund of Monies Paid / Final Decision

Legal Issues

  1. 1 ['Whether the owner was justified in terminating the home building contract for breach.' 'Whether the contract was with the first respondent company or the second respondent personally.' 'Whether the contract was an entire contract with progress payments on account only.' 'Whether the owner was entitled to a refund of amounts paid and compensation for damage after substantial failure of consideration.' 'Whether any costs order should be made.']

Ratio Decidendi

The second respondent personally contracted with the owner, failed within a reasonable time to complete residential building work for a kitchen, removed the existing kitchen and left an unfinished non-operative mess with damage. The contract was an entire fixed-price contract and the progress payments were on account only. Because the owner validly terminated for breach and there was a substantial failure of consideration, the owner was entitled to repayment of the $32,800 paid and $1,058 for restoration damage, totalling $33,858, from the second respondent.

Court Disposition

Application allowed against the second respondent; no order as to costs subject to any alternative costs application.

Orders

  • ['Order that Michael Patrick Travis-Almond pay Craig Brown $33,858 immediately.' 'Subject to orders 3 and 4, make no order as to the costs of the proceedings.' 'Any application for an alternative costs order (including any application for a further hearing on costs) is to be filed and served electronically on or...