Moody v M K Building Services Group Pty Ltd [2022] NSWCATAP 212

Moody v M K Building Services Group Pty Ltd [2022] NSWCATAP 212

The Tribunal erred in failing to consider the homeowners' claim in restitution for a total failure of consideration, as well as in failing to consider making a work order as required by statute; the homeowners received only a trivial benefit under the contract, entitling full repayment of the deposit.

Jurisdiction
Australia
Judgment Date
29 June 2022
Procedural Posture
Appeal / Decision on Appeal
Outcome
Appeal upheld; original decision set aside; order for repayment of deposit.
Legal Topics
['restitution—money Had and Received' 'total Failure of Consideration' 'breach of Contract—building Works' 'home Building Act 1989 (nsw)—rectification Orders' 'internal Appeal—error of Law']
['building and Construction' 'restitution' 'consumer Law'] ['restitution—money Had and Received' 'total Failure of Consideration' 'breach of Contract—building Works' 'home Building Act 1989 (nsw)—rectification Orders' 'internal Appeal—error of Law']

Case Brief

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Procedural Posture

Appeal / Decision on Appeal

Legal Issues

  1. 1 ["Whether the Tribunal erred in treating the homeowners' claim as damages for breach of contract rather than restitution for money had and received" 'Whether there was a total failure of consideration' 'Whether the Tribunal failed to consider making a work order as required by s 48MA of the Home Building Act 1989 (NSW)']

Ratio Decidendi

The Tribunal erred in failing to consider the homeowners' claim in restitution for a total failure of consideration, as well as in failing to consider making a work order as required by statute; the homeowners received only a trivial benefit under the contract, entitling full repayment of the deposit.

Court Disposition

Appeal upheld; original decision set aside; order for repayment of deposit.

Orders

  • ['Appeal upheld.' 'The orders of the Tribunal dated 25 February 2022 are set aside.' 'The respondent is ordered to pay the appellants $4,500 immediately.']