Smith v Slater [2021] NSWCATCD 38

Smith v Slater [2021] NSWCATCD 38

Mr Smith was entitled to terminate the agreement because Mr Slater did not hold a licence entitling him to carry out the residential building work. The Tribunal accepted Mr Smith's evidence that aspects of the work were defective or incomplete and required rectification, including the evidence from Cameron Building Services Pty Ltd and the evidence about pier hole location causing water entry. Mr Smith's recoverable loss was the extra amount paid over the quoted contract price for completion and rectification, plus the accepted inspection/report and repair costs, totalling $19,206. However, the Home Building Act did not entitle Mr Smith to claw back the $7000 already paid merely because...

Jurisdiction
Australia
Judgment Date
20 July 2021
Procedural Posture
Building Claim in Respect of Residential Building Work / Principal Judgment After Hearing
Outcome
Application allowed in part; Mr Smith awarded damages, but the refund claim and costs claim were dismissed.
Legal Topics
['unlicensed Contractor' 'defective and Incomplete Work' 'termination of Building Agreement' 'rectification Damages' 'costs in Ncat']
['building and Construction' 'consumer and Commercial' 'residential Building Work'] ['unlicensed Contractor' 'defective and Incomplete Work' 'termination of Building Agreement' 'rectification Damages' 'costs in Ncat']

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Procedural Posture

Building Claim in Respect of Residential Building Work / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Was Mr Smith entitled to terminate the agreement?' 'Was the work incomplete and/or defective, and was it carried out in accordance with the contract?' 'What was the cost to complete and/or rectify the incomplete and/or defective work?' 'What was the effect of Mr Slater not having an appropriate licence to carry out the work, and was Mr Smith entitled to a refund of monies paid to Mr Slater?' 'Was Mr Smith entitled to be reimbursed for his costs of the proceedings?']

Ratio Decidendi

Mr Smith was entitled to terminate the agreement because Mr Slater did not hold a licence entitling him to carry out the residential building work. The Tribunal accepted Mr Smith's evidence that aspects of the work were defective or incomplete and required rectification, including the evidence from Cameron Building Services Pty Ltd and the evidence about pier hole location causing water entry. Mr Smith's recoverable loss was the extra amount paid over the quoted contract price for completion and rectification, plus the accepted inspection/report and repair costs, totalling $19,206. However, the Home Building Act did not entitle Mr Smith to claw back the $7000 already paid merely because...

Court Disposition

Application allowed in part; Mr Smith awarded damages, but the refund claim and costs claim were dismissed.

Orders

  • ['Matthew Slater is to pay Graham Smith the sum of $19,206.00, on or before 17 August 2021.']