Wesiak v D&R Constructions (Aust) Pty Ltd [2016] NSWCA 353

Wesiak v D&R Constructions (Aust) Pty Ltd [2016] NSWCA 353

The Appeal Panel erred in law because, in assessing repudiation, it failed to take account of critical circumstances including that the June invoice was not a valid progress payment claim, the sum claimed was not payable, the builder was not contractually entitled to suspend work, and the builder had indicated it would resume only on varied terms. On the whole of the evidence, it was not rationally open to find that the owners repudiated the contract; the only rational conclusion was that the builder repudiated by wrongfully ceasing and suspending work and by refusing to perform according to the contract's terms.

Jurisdiction
Australia
Judgment Date
15 December 2016
Procedural Posture
Application for Leave to Appeal and Appeal From the New South Wales Civil and Administrative Tribunal Appeal Panel on a Question of Law Under S 83(1) of the Civil and Administrative Tribunal Act 2013 (nsw) / Court of Appeal Determination of Leave to Appeal and Appeal, Heard Concurrently
Outcome
Leave to appeal granted. Appeal allowed with costs.
Legal Topics
['repudiation of Contract' 'residential Building Contract' 'suspension of Building Work' 'progress Payment Claims' 'question of Law' 'appeal From Civil and Administrative Tribunal Appeal Panel' 'termination for Repudiation']
['contract Law' 'building and Construction' 'administrative Law' 'appeals'] ['repudiation of Contract' 'residential Building Contract' 'suspension of Building Work' 'progress Payment Claims' 'question of Law' 'appeal From Civil and Administrative Tribunal Appeal Panel' 'termination for Repudiation']

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Procedural Posture

Application for Leave to Appeal and Appeal From the New South Wales Civil and Administrative Tribunal Appeal Panel on a Question of Law Under S 83(1) of the Civil and Administrative Tribunal Act 2013 (nsw) / Court of Appeal Determination of Leave to Appeal and Appeal, Heard Concurrently

Legal Issues

  1. 1 ["Whether the Appeal Panel's finding that the owners repudiated the contract was reasonably open on the whole of the evidence and therefore whether it involved an error of law." 'Whether the builder, by suspending work without contractual justification and insisting on payment of the June invoice, repudiated the contract.' "Whether a party that is itself in breach may accept the other party's repudiation and terminate the contract." 'What orders should be made on an appeal under s 83 of the Civil and Administrative Tribunal Act 2013 (NSW).']

Ratio Decidendi

The Appeal Panel erred in law because, in assessing repudiation, it failed to take account of critical circumstances including that the June invoice was not a valid progress payment claim, the sum claimed was not payable, the builder was not contractually entitled to suspend work, and the builder had indicated it would resume only on varied terms. On the whole of the evidence, it was not rationally open to find that the owners repudiated the contract; the only rational conclusion was that the builder repudiated by wrongfully ceasing and suspending work and by refusing to perform according to the contract's terms.

Court Disposition

Leave to appeal granted. Appeal allowed with costs.

Orders

  • ['Grant leave to appeal.' 'Direct that the draft notice of appeal dated 27 April 2016 be filed within 7 days.' 'Order that the appeal be allowed, that the orders of the Appeal Panel made on 12 February 2016 be set aside, and that in their place it be ordered that the appeal to the Appeal Panel be dismissed with...