Vaughan v Robertson & Ors [2002] NSWSC 1106

Vaughan v Robertson & Ors [2002] NSWSC 1106

The plaintiff had admitted a breach of s 8 of the Home Building Act 1989, and clause 25 of the building contract conferred a remedy within s 10(3)(a). The plaintiff therefore was not entitled to rely on clause 25 in respect of any breach by the defendants, and no error of law was shown in the Tribunal's liability decision. The Tribunal's findings as to the contract documents, credibility, damages, loss of amenity and alleged variations were open on the evidence and sufficiently reasoned, so the appeal failed except for the possibility of correcting minor errors by agreement.

Jurisdiction
Australia
Judgment Date
21 November 2002
Procedural Posture
Appeal From Consumer, Trader & Tenancy Tribunal Limited to Error of Law / Judgment on Summons
Outcome
Summons dismissed, subject to possible correction of minor errors by substituted order if the parties agree.
Legal Topics
['home Building Contract' 'enforceability of Contracts and Other Remedies' 'termination of Contract' 'damages for Breach of Contract' 'adequacy of Reasons' 'quantum Meruit']
['administrative Law' 'building and Construction' 'contract Law' 'statutory Construction'] ['home Building Contract' 'enforceability of Contracts and Other Remedies' 'termination of Contract' 'damages for Breach of Contract' 'adequacy of Reasons' 'quantum Meruit']

Case Brief

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Procedural Posture

Appeal From Consumer, Trader & Tenancy Tribunal Limited to Error of Law / Judgment on Summons

Legal Issues

  1. 1 ['Whether the plaintiff builder, having breached s 8 of the Home Building Act 1989, was precluded by s 10(3) from relying on clause 25 of the contract to terminate or bring the contract to an end.' 'Whether the Tribunal erred in determining the contractual documents and rejecting arguments that the contract was void for uncertainty.' "Whether the Tribunal's reasons and findings on damages, including completion costs, rectification costs, water damage and loss of amenity, disclosed an error of law." 'Whether any adjustment was required for alleged variations arising from Council approved plans.']

Ratio Decidendi

The plaintiff had admitted a breach of s 8 of the Home Building Act 1989, and clause 25 of the building contract conferred a remedy within s 10(3)(a). The plaintiff therefore was not entitled to rely on clause 25 in respect of any breach by the defendants, and no error of law was shown in the Tribunal's liability decision. The Tribunal's findings as to the contract documents, credibility, damages, loss of amenity and alleged variations were open on the evidence and sufficiently reasoned, so the appeal failed except for the possibility of correcting minor errors by agreement.

Court Disposition

Summons dismissed, subject to possible correction of minor errors by substituted order if the parties agree.

Orders

  • ['The Summons is dismissed.' 'The plaintiff is to pay the costs of the Summons.' 'The Exhibits may be returned.' 'If agreement is reached to correct the minor errors, the errors may be corrected by substituted order and the appeal can be otherwise dismissed.']