Jayasooriah v Wisdom Properties Group Pty Ltd [2021] NSWCATCD 84

Jayasooriah v Wisdom Properties Group Pty Ltd [2021] NSWCATCD 84

The applicant failed to prove any contractual obligation requiring the power pole to be located at the northern corner, any unfairness or invalidity in Builder Condition 12, any loss caused by the alleged amendment to that condition, or any entitlement to delay damages outside the contractual liquidated damages regime. On the evidence, the contract period commenced on 2 December 2015, was extended at least by the five-week industry shutdown, and practical completion was achieved at the latest by 31 October 2016, producing 42 working days of delay at $15 per day, or $630. In the renewal proceedings, the Tribunal could address non-compliance with previous work orders but could not permit a...

Jurisdiction
Australia
Judgment Date
13 August 2021
Procedural Posture
Home Building Claim in the Consumer and Commercial Division / Remittal From the Appeal Panel in HB 20/25790 and Renewal Application in HB 20/45367 Concerning Alleged Non Compliance With Consent Work Orders
Outcome
The applicant was awarded $630 as liquidated damages in the remitted proceedings; the remitted application was otherwise dismissed. In the renewal proceedings, limited work orders were made and the respondent was ordered to pay $5,863; the balance of the renewal application was dismissed.
Legal Topics
['renewal of Proceedings After Work Order' 'defective Residential Building Work' 'liquidated Damages for Delay' 'unfair Contract Terms' 'contract Price Adjustment' 'remittal After Appeal']
['building and Construction' 'consumer Law' 'home Building' 'civil Procedure'] ['renewal of Proceedings After Work Order' 'defective Residential Building Work' 'liquidated Damages for Delay' 'unfair Contract Terms' 'contract Price Adjustment' 'remittal After Appeal']

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Procedural Posture

Home Building Claim in the Consumer and Commercial Division / Remittal From the Appeal Panel in HB 20/25790 and Renewal Application in HB 20/45367 Concerning Alleged Non Compliance With Consent Work Orders

Legal Issues

  1. 1 ["Whether the respondent was liable for the applicant's cost of relocating the power pole or any compensation for the original electricity connection." 'Whether Builder Condition 12 permitted a $13,000 price increase and whether it was an unfair contract term under the Australian Consumer Law.' 'Whether an alleged amendment to the commencement date in Builder Condition 12 caused compensable loss.' 'Whether the applicant was entitled to liquidated damages beyond $630 for delay in completion.' 'Whether, in renewal proceedings, the applicant could raise a fresh claim concerning the pressure pump that was not the subject of the previous consent work orders.' 'Whether alleged remaining defects in the shower screen, grated drain, alarm sensors, air-conditioning outlets, plumbing pit and pressure pump required work orders or compensation.']

Ratio Decidendi

The applicant failed to prove any contractual obligation requiring the power pole to be located at the northern corner, any unfairness or invalidity in Builder Condition 12, any loss caused by the alleged amendment to that condition, or any entitlement to delay damages outside the contractual liquidated damages regime. On the evidence, the contract period commenced on 2 December 2015, was extended at least by the five-week industry shutdown, and practical completion was achieved at the latest by 31 October 2016, producing 42 working days of delay at $15 per day, or $630. In the renewal proceedings, the Tribunal could address non-compliance with previous work orders but could not permit a...

Court Disposition

The applicant was awarded $630 as liquidated damages in the remitted proceedings; the remitted application was otherwise dismissed. In the renewal proceedings, limited work orders were made and the respondent was ordered to pay $5,863; the balance of the renewal application was dismissed.

Orders

  • ['In proceedings HB 20/25790, the respondent, Wisdom Properties Group Pty Ltd, is to pay the applicant, Jayasooriah, the sum of $630 as liquidated damages for delay in completion of the building works within 14 days.' 'In proceedings HB 20/25790, the application is otherwise dismissed.' 'In proceedings HB 20/45367,...