D&R Constructions (Aust) Pty Ltd v Wesiak [2016] NSWCATAP 38

D&R Constructions (Aust) Pty Ltd v Wesiak [2016] NSWCATAP 38

The respondents’ letter of 17 September 2013, viewed objectively in context, evinced an intention to terminate the contract and engage a new contractor, constituting repudiation of the building contract. This entitled the appellant, D&R Constructions (Aust) Pty Ltd, to treat the contract as terminated and claim compensation. The appellant’s earlier conduct did not amount to repudiation, and there was no abandonment. The orders in favour of the respondents were set aside, and the matter remitted to determine the quantum of compensation and costs.

Jurisdiction
Australia
Judgment Date
12 February 2016
Procedural Posture
Appeal / Decision on Appeal
Outcome
Appeal upheld
Legal Topics
['repudiation of Contract' 'termination of Building Contracts' 'progress Payments Under Building Contracts' 'damages for Breach of Contract']
['building and Construction Law' 'contract Law'] ['repudiation of Contract' 'termination of Building Contracts' 'progress Payments Under Building Contracts' 'damages for Breach of Contract']

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Procedural Posture

Appeal / Decision on Appeal

Legal Issues

  1. 1 ["Was the appellant entitled to terminate the building contract on the basis of the respondents' conduct constituting repudiation?" "Did the respondent owners' letter and conduct amount to anticipatory breach/repudiation?" 'Was the appellant builder in breach by issuing non-compliant progress claims or abandoning the works?' 'What are the consequences for compensation and costs following valid termination by the appellant?']

Ratio Decidendi

The respondents’ letter of 17 September 2013, viewed objectively in context, evinced an intention to terminate the contract and engage a new contractor, constituting repudiation of the building contract. This entitled the appellant, D&R Constructions (Aust) Pty Ltd, to treat the contract as terminated and claim compensation. The appellant’s earlier conduct did not amount to repudiation, and there was no abandonment. The orders in favour of the respondents were set aside, and the matter remitted to determine the quantum of compensation and costs.

Court Disposition

Appeal upheld

Orders

  • ['The appeal is upheld.' 'The orders made in the decision under appeal are quashed.' 'The proceedings are remitted to the Senior Member for the purpose of determining consequential orders for the payment of compensation and costs consequent upon our determination that the appellant was entitled to terminate the...