Tanios v Baserite Constructions Pty Ltd [2021] NSWCATCD 85

Tanios v Baserite Constructions Pty Ltd [2021] NSWCATCD 85

The Tribunal found that a binding Work Agreement arose from the compromise and consent orders of 8 February 2019 obliging the builder to perform specified remedial works at its own cost; the builder breached this contract and associated statutory warranties by failing to properly complete the agreed works within time or to the required standard; alleged oral variations were not established or effective and did not relieve the builder of liability; damages were appropriately measured by the cost of remedying the defects as assessed by the owner's expert at $180,144. The builder's cross claim for quantum meruit must fail as the contract price was nil and the contract terms required...

Jurisdiction
Australia
Judgment Date
10 August 2021
Procedural Posture
Civil / Final Decision After Remitter From Appeal Panel; Disposition of Two Proceedings (owner's Claim and Builder's Cross Claim) in Civil and Administrative Tribunal, Consumer and Commercial Division
Outcome
Owner's claim for damages for breach of the Work Agreement is allowed; Builder's cross-claim is dismissed.
Legal Topics
['statutory Warranties in Residential Building' 'work Orders and Monetary Orders' 'jurisdiction of Tribunal' 'consent Orders and Contractual Effect' 'quantum Meruit Claims' 'damages for Breach of Building Agreement']
['building and Construction Law' 'contract Law' 'consumer Law'] ['statutory Warranties in Residential Building' 'work Orders and Monetary Orders' 'jurisdiction of Tribunal' 'consent Orders and Contractual Effect' 'quantum Meruit Claims' 'damages for Breach of Building Agreement']

Case Brief

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Procedural Posture

Civil / Final Decision After Remitter From Appeal Panel; Disposition of Two Proceedings (owner's Claim and Builder's Cross Claim) in Civil and Administrative Tribunal, Consumer and Commercial Division

Legal Issues

  1. 1 ['Whether a binding Work Agreement arose from the consent orders and compromise of prior proceedings' 'Whether alleged oral variation concerning weepholes was enforceable or established' "Whether the Tribunal had jurisdiction to make the original consent work order (whether defects were 'major')" 'Whether builder breached the Work Agreement and/or statutory warranties' 'Whether builder entitled to quantum meruit for additional works' "Jurisdictional basis for owner's monetary claim and builder's cross claim"]

Ratio Decidendi

The Tribunal found that a binding Work Agreement arose from the compromise and consent orders of 8 February 2019 obliging the builder to perform specified remedial works at its own cost; the builder breached this contract and associated statutory warranties by failing to properly complete the agreed works within time or to the required standard; alleged oral variations were not established or effective and did not relieve the builder of liability; damages were appropriately measured by the cost of remedying the defects as assessed by the owner's expert at $180,144. The builder's cross claim for quantum meruit must fail as the contract price was nil and the contract terms required...

Court Disposition

Owner's claim for damages for breach of the Work Agreement is allowed; Builder's cross-claim is dismissed.

Orders

  • ['In HB 20/33320, Baserite Constructions Pty Ltd is to pay John Tanios $180,144.00 within 28 days of the date of these orders.' "The proceeding HB 20/40203 (builder's cross claim) is dismissed." 'Parties may file written submissions on costs within 28 days if sought, with opportunity for reply within a further 28...