DB Homes Australia Pty Limited v Kes [2019] NSWCATAP 221

DB Homes Australia Pty Limited v Kes [2019] NSWCATAP 221

No error of law or error warranting leave to appeal was established; factual findings supported that the builder had repudiated the contract and was not entitled to damages or the payment of legal fees as claimed. The Tribunal's findings were thorough and sound, and no substantial miscarriage of justice was shown.

Jurisdiction
Australia
Judgment Date
30 August 2019
Procedural Posture
Internal Appeal / Appeal Panel Judgment
Outcome
appeal dismissed
Legal Topics
['appeals' 'repudiation' 'building Contract Termination' 'adequacy of Findings' 'statutory Warranties']
['building and Construction' 'contract Law'] ['appeals' 'repudiation' 'building Contract Termination' 'adequacy of Findings' 'statutory Warranties']

Case Brief

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Procedural Posture

Internal Appeal / Appeal Panel Judgment

Legal Issues

  1. 1 ['Whether the builder lawfully terminated the contract' 'Whether oral agreements varied or supplemented the written contract' 'Whether homeowners repudiated the contract' 'Entitlement to damages for breach, rectification, and completion of work' "Entitlement to builder's claims for loss of profits and legal fees"]

Ratio Decidendi

No error of law or error warranting leave to appeal was established; factual findings supported that the builder had repudiated the contract and was not entitled to damages or the payment of legal fees as claimed. The Tribunal's findings were thorough and sound, and no substantial miscarriage of justice was shown.

Court Disposition

appeal dismissed

Orders

  • ['The stay of Tribunal orders made on 10 April 2019 is lifted immediately.' 'The appeal is dismissed.' 'DB Homes Australia Pty Ltd is to pay Mehtap Kes and Mehmet Kes costs of the proceedings in Matter AP 19/21441 as agreed or assessed under legal costs legislation.' 'If either party seeks to vary the costs order,...