DB Homes Pty Ltd v D’Souza [2020] NSWCATAP 104

DB Homes Pty Ltd v D’Souza [2020] NSWCATAP 104

The Appeal Panel held that the Tribunal had determined the relevant contractual timing issues and actual construction duration, and had considered the contract, completion evidence and meteorology evidence. The contract did not need to contain an express delay damages clause for damages to be available upon breach, and the absence of a specific completion date for stages 1 and 2 meant the statutory warranty required completion within a reasonable time. The appellant did not show any error of law or that the decision was against the weight of evidence or caused a substantial miscarriage of justice. Leave to appeal was therefore refused and the appeal dismissed.

Jurisdiction
Australia
Judgment Date
10 June 2020
Procedural Posture
Internal Appeal From a Consumer and Commercial Division Home Building Decision / Appeal Panel Decision on Leave to Appeal and Appeal
Outcome
Leave to appeal refused; appeal dismissed.
Legal Topics
['delay Damages for Late Completion' 'construction of Building Contract' 'statutory Warranties' 'leave to Appeal' 'new Evidence' 'weight of Evidence']
['home Building' 'contract Law' 'civil Procedure'] ['delay Damages for Late Completion' 'construction of Building Contract' 'statutory Warranties' 'leave to Appeal' 'new Evidence' 'weight of Evidence']

Case Brief

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Procedural Posture

Internal Appeal From a Consumer and Commercial Division Home Building Decision / Appeal Panel Decision on Leave to Appeal and Appeal

Legal Issues

  1. 1 ['Whether the Tribunal failed to determine the correct contractual start and finish dates of the project.' 'Whether the Tribunal failed to determine the actual construction duration.' 'Whether damages for delay could be awarded where the contract did not expressly provide for delay damages.' 'Whether the absence of a specific agreed completion date prevented a finding of breach for late completion.' 'Whether the Tribunal failed to consider evidence submitted by the appellant or made a decision against the weight of evidence.' 'Whether the respondents could introduce new evidence to increase the delay period without instituting separate appeal proceedings.']

Ratio Decidendi

The Appeal Panel held that the Tribunal had determined the relevant contractual timing issues and actual construction duration, and had considered the contract, completion evidence and meteorology evidence. The contract did not need to contain an express delay damages clause for damages to be available upon breach, and the absence of a specific completion date for stages 1 and 2 meant the statutory warranty required completion within a reasonable time. The appellant did not show any error of law or that the decision was against the weight of evidence or caused a substantial miscarriage of justice. Leave to appeal was therefore refused and the appeal dismissed.

Court Disposition

Leave to appeal refused; appeal dismissed.

Orders

  • ['Leave to appeal is refused.' 'The Appeal is dismissed.']