Carbone v Fowler Homes Pty Ltd [2023] NSWDC 29

Carbone v Fowler Homes Pty Ltd [2023] NSWDC 29

Plaintiffs are not entitled to a credit for the Camden Council section 94 contributions as the sums were not specifically provided for as provisional sum items in the building contract. Giuseppe Carbone's claim of a $60,000 cash payment was not established to the required evidential standard. Damages for foregone rent cannot be awarded as the causes of action in deceit and unconscionable conduct were not made out and there was no adequate evidence to assess rental loss. No exemplary damages are warranted.

Parties
Plaintiff: Giuseppe Carbone; Plaintiff: Matthew Carbone; Defendant: Fowler Homes Pty Ltd
Jurisdiction
Australia
Judgment Date
17 February 2023
Procedural Posture
Civil / Principal Judgment After Trial; Parties Directed to Bring in Short Minutes of Order; Further Mention Set
Outcome
Plaintiffs’ key claims dismissed. Proceedings stood over for mention on orders/accounting.
Legal Topics
Contract Variations, Misleading and Deceptive Conduct, Unconscionable Conduct, Damages, Evidential Standards
Building and Construction Law Contract Law Consumer Law Contract Variations Misleading and Deceptive Conduct Unconscionable Conduct Damages Evidential Standards

Case Brief

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Parties

Giuseppe Carbone

Plaintiff

Matthew Carbone

Plaintiff

Fowler Homes Pty Ltd

Defendant

Procedural Posture

Civil / Principal Judgment After Trial; Parties Directed to Bring in Short Minutes of Order; Further Mention Set

Legal Issues

  1. 1 Whether plaintiffs are entitled to a credit for Camden Council section 94 contributions in the accounting with the defendant
  2. 2 Whether Giuseppe Carbone made a $60,000 cash payment to the defendant
  3. 3 Whether either plaintiff is entitled to damages on account of foregone rent

Ratio Decidendi

Plaintiffs are not entitled to a credit for the Camden Council section 94 contributions as the sums were not specifically provided for as provisional sum items in the building contract. Giuseppe Carbone's claim of a $60,000 cash payment was not established to the required evidential standard. Damages for foregone rent cannot be awarded as the causes of action in deceit and unconscionable conduct were not made out and there was no adequate evidence to assess rental loss. No exemplary damages are warranted.

Court Disposition

Plaintiffs’ key claims dismissed. Proceedings stood over for mention on orders/accounting.

Orders

  • Parties to bring in short minutes of order reflecting judgment.
  • If dispute remains, parties to agree on an independent referee to resolve accounting issues pursuant to UCPR 20.15.