Woodward v D J & T L Mellross Pty Ltd [2018] NSWCATAP 179

Woodward v D J & T L Mellross Pty Ltd [2018] NSWCATAP 179

The Appeal Panel held that the Senior Member did not err in finding practical completion, rejecting claims concerning excavation spoil, air conditioning, concrete and loss of amenity, or construing the contract as requiring only one water tank. However, the Senior Member erred by failing to provide a remedy for the builder's admitted breach in supplying a 110,000 litre water tank instead of the contracted 120,000 litre tank; although replacing the existing tank was not reasonable, the home owners were entitled to a remedy by installation of an additional minimum 10,000 litre tank or, if they elected otherwise, payment of $1,320.

Jurisdiction
Australia
Judgment Date
25 July 2018
Procedural Posture
Appeal From Consumer and Commercial Division Home Building Proceedings / Appeal Panel Decision
Outcome
Leave to appeal refused; appeal from HB 16/42636 dismissed; appeal from HB 16/52751 allowed in part.
Legal Topics
['construction of Contracts' 'precedence of Contract Documents' 'practical Completion' 'assessment of Damages' 'rectification Damages' 'leave to Appeal' 'statutory Warranties']
['building and Construction' 'home Building' 'contract Law' 'civil Procedure'] ['construction of Contracts' 'precedence of Contract Documents' 'practical Completion' 'assessment of Damages' 'rectification Damages' 'leave to Appeal' 'statutory Warranties']

Case Brief

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Procedural Posture

Appeal From Consumer and Commercial Division Home Building Proceedings / Appeal Panel Decision

Legal Issues

  1. 1 ['Whether the Tribunal erred in finding practical completion had been achieved and that the builder was entitled to the final progress payment.' 'Whether the contract required installation of one or two 120,000 litre water tanks.' 'Whether the Tribunal erred in failing to award a remedy for installation of a 110,000 litre water tank instead of a 120,000 litre water tank.' 'Whether replacement of the installed air conditioner was a reasonable course to adopt or compensation should be awarded.' 'Whether the builder was liable for failure to remove excavation spoil based on statements by a bobcat operator.' 'Whether compensation should have been awarded for cracking in concrete verandah slabs.' 'Whether compensation should have been awarded for alleged loss of use and enjoyment of land surrounding the house.']

Ratio Decidendi

The Appeal Panel held that the Senior Member did not err in finding practical completion, rejecting claims concerning excavation spoil, air conditioning, concrete and loss of amenity, or construing the contract as requiring only one water tank. However, the Senior Member erred by failing to provide a remedy for the builder's admitted breach in supplying a 110,000 litre water tank instead of the contracted 120,000 litre tank; although replacing the existing tank was not reasonable, the home owners were entitled to a remedy by installation of an additional minimum 10,000 litre tank or, if they elected otherwise, payment of $1,320.

Court Disposition

Leave to appeal refused; appeal from HB 16/42636 dismissed; appeal from HB 16/52751 allowed in part.

Orders

  • ['By consent Belinda Woodward is joined as an appellant.' 'Leave to appeal refused.' 'Appeal from the decision in HB 16/42636 dismissed.' 'Appeal from the decision in HB 16/52751 allowed in part.' 'The orders made on 19 September 2017 in proceedings HB 16/52751 are varied by the addition of Orders 10 and 11.'...