M & M Building Pty Ltd v Keith [2017] NSWCATAP 88

M & M Building Pty Ltd v Keith [2017] NSWCATAP 88

The Appeal Panel held that the home owners did not validly determine or terminate the contract because the contractual dispute notice and meeting requirements were not satisfied and clause 28 concerned determination of the builder's employment rather than common law termination. However, damages for the builder's actual breaches could still be awarded although the contract remained on foot. The only demonstrated error affecting quantum was the garage floor slab item: the home owners had not proved that the area was structurally unsound, so the award had to be reduced by $69,882.78. The remaining challenges failed because the Tribunal's findings on defects and incomplete works were...

Jurisdiction
Australia
Judgment Date
28 April 2017
Procedural Posture
Home Building Contract Appeal / Appeal Panel Decision on Internal Appeal From Consumer and Commercial Division Decision
Outcome
Appeal allowed in part; otherwise dismissed.
Legal Topics
['termination of Building Contract' 'repudiation' 'defective and Incomplete Residential Building Work' 'variations' 'extensions of Time' 'suspension for Non Payment' 'procedural Fairness' 'rectification Under S48 MA Home Building Act 1989 (nsw)' 'estoppel and Acquiescence']
['home Building' 'contract Law' 'civil Procedure'] ['termination of Building Contract' 'repudiation' 'defective and Incomplete Residential Building Work' 'variations' 'extensions of Time' 'suspension for Non Payment' 'procedural Fairness' 'rectification Under S48 MA Home Building Act 1989 (nsw)' 'estoppel and Acquiescence']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Home Building Contract Appeal / Appeal Panel Decision on Internal Appeal From Consumer and Commercial Division Decision

Legal Issues

  1. 1 ['Whether the builder was entitled to extensions of time for completion of the works.' 'Whether the builder validly suspended the building contract in May 2015.' "Whether the home owners validly exercised a right to terminate the building contract based on the builder's repudiation of its contractual obligations." 'Whether the Tribunal was correct in making findings in relation to specific defects set out in the Scott Schedule.' 'Whether the home owners and the builder agreed certain variations.' 'Whether the Tribunal erred in failing to take into account amounts paid in respect of provisional sum items.' 'Whether the Tribunal erred in not ordering that defects be rectified by the builder having regard to section 48MA of the Home Building Act 1989 (NSW).' 'Whether the Tribunal erred in making a finding about the drawings that would apply.' 'Whether allowing submissions concerning termination at common law denied procedural fairness.']

Ratio Decidendi

The Appeal Panel held that the home owners did not validly determine or terminate the contract because the contractual dispute notice and meeting requirements were not satisfied and clause 28 concerned determination of the builder's employment rather than common law termination. However, damages for the builder's actual breaches could still be awarded although the contract remained on foot. The only demonstrated error affecting quantum was the garage floor slab item: the home owners had not proved that the area was structurally unsound, so the award had to be reduced by $69,882.78. The remaining challenges failed because the Tribunal's findings on defects and incomplete works were...

Court Disposition

Appeal allowed in part; otherwise dismissed.

Orders

  • ['The appeal is allowed in part in the sum of $69,882.78.' 'Otherwise the appeal is dismissed and the appellant is ordered to pay the respondents the sum of $352,077.91 in substitution for the order for the payment of $421,960.69 made by the Tribunal on 6 May 2016.' "The question of costs is reserved. If either...