Middleton v Wrona [2023] NSWCATAP 158

Middleton v Wrona [2023] NSWCATAP 158

The Tribunal erred in ordering restitution of $65,280.59 based only on credits for particular items without conducting a proper accounting of all works performed under the contract and assessing whether homeowners paid more than was properly due for the works; the evidence and findings did not establish overpayment or unjust enrichment, and the builder was entitled to retain the payments made. The demolition and rebuild of the garage order was supported by expert evidence accepted by the Tribunal as findings of defect and unsuitability for intended load/use.

Parties
Appellant: Lee Kenneth Middleton; First Respondent: Linda May Wrona; Second Respondent: Richard John Wrona
Jurisdiction
Australia
Judgment Date
14 June 2023
Procedural Posture
Civil Appeal / Appeal Panel Decision
Outcome
Appeal allowed in part; order 3 for restitution set aside; garage work order upheld; leave to appeal otherwise refused; costs submissions invited.
Legal Topics
Lump Sum Contract, Variation, Progress Payments, Breach of Contract, Rectification, Money Had and Received, Unjust Enrichment, Garage Demolition and Rebuild
Building and Construction Restitution Lump Sum Contract Variation Progress Payments Breach of Contract Rectification Money Had and Received +2 more

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Parties

Lee Kenneth Middleton

Appellant

Linda May Wrona

First Respondent

Richard John Wrona

Second Respondent

Procedural Posture

Civil Appeal / Appeal Panel Decision

Legal Issues

  1. 1 Whether restitution award for overpayment under renovation contract was appropriate
  2. 2 Whether builder was required to demolish and rebuild garage due to defects
  3. 3 Proper characterization of progress payments and additional works under contract

Ratio Decidendi

The Tribunal erred in ordering restitution of $65,280.59 based only on credits for particular items without conducting a proper accounting of all works performed under the contract and assessing whether homeowners paid more than was properly due for the works; the evidence and findings did not establish overpayment or unjust enrichment, and the builder was entitled to retain the payments made. The demolition and rebuild of the garage order was supported by expert evidence accepted by the Tribunal as findings of defect and unsuitability for intended load/use.

Court Disposition

Appeal allowed in part; order 3 for restitution set aside; garage work order upheld; leave to appeal otherwise refused; costs submissions invited.

Orders

  • Leave to appeal order 3 granted; appeal allowed and order 3 is set aside.
  • Stay of order 1 lifted; order 4(1)(f) varied so garage work completion required within 9 months from date of order.