Lionel Smith v John Emmery [2014] NSWCATCD 66

Lionel Smith v John Emmery [2014] NSWCATCD 66

The Tribunal found the builder breached warranties regarding quality and workmanlike construction, failed to obtain required insurance, and produced substandard and unnecessary work. These breaches, though serious, did not justify termination at common law but did entitle the owner to damages for rectification and refund of payment. The builder was not entitled to compensation given absence of mandatory insurance and it was not just and equitable for quantum meruit recovery.

Parties
Applicant: Lionel Smith; Respondent: John Emmery
Jurisdiction
Australia
Judgment Date
06 May 2014
Procedural Posture
Building Claim / Final Decision
Outcome
application allowed in part; adverse orders against respondent
Legal Topics
Breach of Contract, Statutory Warranties, Damages, Home Building Insurance, Termination of Contract
Home Building Contract Breach of Contract Statutory Warranties Damages Home Building Insurance Termination of Contract

Case Brief

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Parties

Lionel Smith

Applicant

John Emmery

Respondent

Procedural Posture

Building Claim / Final Decision

Legal Issues

  1. 1 Whether the builder breached the contract and statutory warranties
  2. 2 Whether the builder failed to obtain required insurance
  3. 3 Whether the owner was entitled to terminate the contract and claim damages/refund

Ratio Decidendi

The Tribunal found the builder breached warranties regarding quality and workmanlike construction, failed to obtain required insurance, and produced substandard and unnecessary work. These breaches, though serious, did not justify termination at common law but did entitle the owner to damages for rectification and refund of payment. The builder was not entitled to compensation given absence of mandatory insurance and it was not just and equitable for quantum meruit recovery.

Court Disposition

application allowed in part; adverse orders against respondent

Orders

  • The respondent is to pay the applicant $28,195.00 within 21 days of the date of this order.
  • Costs reserved pending receipt of any further written submissions to be filed and served by 16 May 2014 in the case of the applicant and by 30 May 2014 in the case of the respondent.