Kostos Pty Ltd v Vellios; Vellios v Kostos Pty Ltd [2019] NSWCATCD 13

Kostos Pty Ltd v Vellios; Vellios v Kostos Pty Ltd [2019] NSWCATCD 13

Builder entitled to quantum meruit payment for certain works outside scope of contract where owners requested and accepted benefit knowing builder expected payment; contractual claims for variations not in writing were rejected. Owners entitled to rectification and compensation for defective items due to builder's breach of statutory warranties. Amounts owed between parties set off as appropriate.

Parties
Applicant: Kostos Pty Ltd; Respondent: Dimitri Vellios; Respondent: Vicki Vellios; Applicant: Dimitri Vellios; Applicant: Vicki Vellios; Respondent: Kostos Pty Ltd
Jurisdiction
Australia
Judgment Date
08 May 2019
Procedural Posture
Civil Dispute Regarding Residential Building Contract and Variations / Final Determination and Orders in Two Cross Applications
Outcome
Builder's application: Owners ordered to pay builder $55,708.79; Owners' application: Builder ordered to pay Owners $17,052 and to carry out rectification work as specified; issue of costs to be determined following written submissions as per Tribunal directions.
Legal Topics
Quantum Meruit, Statutory Warranties, Rectification of Defective Work, Set Off, Variation Claims, Home Building Act 1989 (nsw)
Construction Law Contract Law Consumer Law Quantum Meruit Statutory Warranties Rectification of Defective Work Set Off Variation Claims +1 more

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Parties

Kostos Pty Ltd

Applicant

Dimitri Vellios

Respondent

Vicki Vellios

Respondent

Dimitri Vellios

Applicant

Vicki Vellios

Applicant

Kostos Pty Ltd

Respondent

Procedural Posture

Civil Dispute Regarding Residential Building Contract and Variations / Final Determination and Orders in Two Cross Applications

Legal Issues

  1. 1 Whether the builder is entitled to payment for extra works claimed outside scope of contract
  2. 2 Whether owners are entitled to compensation or rectification for defective/incomplete works
  3. 3 Whether variations not in writing can be recovered on quantum meruit

Ratio Decidendi

Builder entitled to quantum meruit payment for certain works outside scope of contract where owners requested and accepted benefit knowing builder expected payment; contractual claims for variations not in writing were rejected. Owners entitled to rectification and compensation for defective items due to builder's breach of statutory warranties. Amounts owed between parties set off as appropriate.

Court Disposition

Builder's application: Owners ordered to pay builder $55,708.79; Owners' application: Builder ordered to pay Owners $17,052 and to carry out rectification work as specified; issue of costs to be determined following written submissions as per Tribunal directions.

Orders

  • Owners to immediately pay builder $55,708.79 including GST (HB 17/21359).
  • Builder to immediately pay owners $17,052 including GST, owners may set off against amount owed to builder (HB 17/38120).