Gannon Construction Pty Ltd v Brooks [2017] NSWCATAP 168

Gannon Construction Pty Ltd v Brooks [2017] NSWCATAP 168

Clause 2.2 did not itself exclude or limit the Builder's liability. Its natural and ordinary language, particularly the word "may", was permissive and contemplated that the contract could contain a further limitation of liability. Because there was no other contractual provision taking up that option or defining such a limitation, the Builder's reliance on clause 2.2 failed and the appeal had to be dismissed.

Jurisdiction
Australia
Judgment Date
23 June 2017
Procedural Posture
Appeal Concerning a Home Building Contract and Alleged Breaches of Statutory Warranties / Appeal From the Civil and Administrative Tribunal, Consumer and Commercial Division Decision [2017] NSWCATCD 12 Dated 2 March 2017
Outcome
Appeal dismissed.
Legal Topics
['breach of Statutory Warranties' 'home Building Contract' "limitation of Builder's Liability" 'construction of Contractual Clause' 'home Building Act 1989 (nsw)']
['home Building' 'contract Law' 'administrative Appeals'] ['breach of Statutory Warranties' 'home Building Contract' "limitation of Builder's Liability" 'construction of Contractual Clause' 'home Building Act 1989 (nsw)']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 1 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Appeal Concerning a Home Building Contract and Alleged Breaches of Statutory Warranties / Appeal From the Civil and Administrative Tribunal, Consumer and Commercial Division Decision [2017] NSWCATCD 12 Dated 2 March 2017

Legal Issues

  1. 1 ["Whether clause 2.2 of the home building contract excluded or limited the Builder's liability for breaches of statutory warranties in s 18B of the Home Building Act 1989 (NSW)." 'Whether the Tribunal erred in finding that the defence in s 18F of the Home Building Act 1989 (NSW) was the only defence available for breach of statutory warranty.' 'Whether the Builder made out a contractual defence under clause 2.2 in relation to the structural steel and Western Red Cedar balustrade.']

Ratio Decidendi

Clause 2.2 did not itself exclude or limit the Builder's liability. Its natural and ordinary language, particularly the word "may", was permissive and contemplated that the contract could contain a further limitation of liability. Because there was no other contractual provision taking up that option or defining such a limitation, the Builder's reliance on clause 2.2 failed and the appeal had to be dismissed.

Court Disposition

Appeal dismissed.

Orders

  • ['The appeal is dismissed.' 'The stay granted on 18 April 2017 is lifted.' 'The Appellant is to pay the costs of the Respondent as agreed or assessed.']