Dyjecinska v Step-Up Renovations (NSW) Pty Ltd [2024] NSWSC 159

Dyjecinska v Step-Up Renovations (NSW) Pty Ltd [2024] NSWSC 159

A written residential building contract that is unsigned and undated may nonetheless be a 'contract in writing' for the purposes of s 10(1)(b) of the Home Building Act 1989 (NSW), and thus enforceable by the builder, where the terms are otherwise agreed and there is no ambiguity or uncertainty as to those terms. The legislature did not intend that non-compliance with the signature requirement alone would render the contract unenforceable, absent explicit statutory language to that effect. Breach of s 7B does not trigger the disentitlement in s 10(1)(c) as it is not a prescribed provision for that purpose.

Jurisdiction
Australia
Judgment Date
26 February 2024
Procedural Posture
Appeal / Application for Leave to Appeal and Appeal Determination Before the Supreme Court of New South Wales
Outcome
Leave to appeal refused; appeal dismissed; orders for costs against plaintiff.
Legal Topics
['statutory Interpretation' 'formality Requirements for Contracts' 'enforceability of Building Contracts' 'consumer Protection' 'remedies for Breach of Contract']
['contract Law' 'building and Construction'] ['statutory Interpretation' 'formality Requirements for Contracts' 'enforceability of Building Contracts' 'consumer Protection' 'remedies for Breach of Contract']

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Procedural Posture

Appeal / Application for Leave to Appeal and Appeal Determination Before the Supreme Court of New South Wales

Legal Issues

  1. 1 ["Whether a written, unsigned and undated building contract is a 'contract in writing' for enforceability under section 10(1)(b) of the Home Building Act 1989 (NSW)" 'Whether breach of signature and delivery requirements under section 7B renders a contract unenforceable by the builder pursuant to section 10(1)(c) of the Act']

Ratio Decidendi

A written residential building contract that is unsigned and undated may nonetheless be a 'contract in writing' for the purposes of s 10(1)(b) of the Home Building Act 1989 (NSW), and thus enforceable by the builder, where the terms are otherwise agreed and there is no ambiguity or uncertainty as to those terms. The legislature did not intend that non-compliance with the signature requirement alone would render the contract unenforceable, absent explicit statutory language to that effect. Breach of s 7B does not trigger the disentitlement in s 10(1)(c) as it is not a prescribed provision for that purpose.

Court Disposition

Leave to appeal refused; appeal dismissed; orders for costs against plaintiff.

Orders

  • ["The plaintiff's application for leave is refused." 'The appeal is dismissed.' 'The decision of the Appeal Panel dated 8 March 2023 is affirmed.' 'The summons filed 8 March 2023 is dismissed.' "The plaintiff is to pay the defendant's costs."]