Schmuelly v Elrob Construction Group Pty Ltd (No 3) [2025] NSWSC 118

Schmuelly v Elrob Construction Group Pty Ltd (No 3) [2025] NSWSC 118

The builder did not engage in misleading or deceptive conduct as alleged; the statements about building experience were not relied upon or not shown to be misleading. The works were incomplete and defective, but the plaintiff was not entitled to recover completion costs as he did not prove builder's repudiation. The plaintiff was entitled to recover overpayments made for incomplete milestone payments and overcharged variations, as the builder received more than the value of works done. The builder's cross-claim for unpaid variations and quantum meruit failed, as he had already been overpaid.

Parties
Plaintiff: Dror Schmuelly; First Defendant: Elrob Construction Group Pty Ltd; Second Defendant: Elia Boujaoude
Jurisdiction
Australia
Judgment Date
06 March 2025
Procedural Posture
Principal Judgment / Final Determination After Trial
Outcome
Judgment for plaintiff in part; claim and cross-claim otherwise dismissed.
Legal Topics
Misleading or Deceptive Conduct, Building Contracts, Repudiation, Rectification of Defects, Damages Assessment, Milestone Payments, Variations, Mitigation of Loss
Consumer Law Contracts Damages Misleading or Deceptive Conduct Building Contracts Repudiation Rectification of Defects Damages Assessment +3 more

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Parties

Dror Schmuelly

Plaintiff

Elrob Construction Group Pty Ltd

First Defendant

Elia Boujaoude

Second Defendant

Procedural Posture

Principal Judgment / Final Determination After Trial

Legal Issues

  1. 1 Whether the builder engaged in misleading or deceptive conduct regarding prior experience
  2. 2 Whether the builder breached the building contract
  3. 3 Whether the builder repudiated the contract

Ratio Decidendi

The builder did not engage in misleading or deceptive conduct as alleged; the statements about building experience were not relied upon or not shown to be misleading. The works were incomplete and defective, but the plaintiff was not entitled to recover completion costs as he did not prove builder's repudiation. The plaintiff was entitled to recover overpayments made for incomplete milestone payments and overcharged variations, as the builder received more than the value of works done. The builder's cross-claim for unpaid variations and quantum meruit failed, as he had already been overpaid.

Court Disposition

Judgment for plaintiff in part; claim and cross-claim otherwise dismissed.

Orders

  • Judgment for the plaintiff against the first defendant in the sum of $1,133,332 (excluding GST) together with interest under s 100 of the Civil Procedure Act 2005 (NSW).
  • Proceedings otherwise dismissed.