Mirosevich v Haddad & Haddad [2000] NSWFTT 4

Mirosevich v Haddad & Haddad [2000] NSWFTT 4

Even assuming the Respondents' non-payment of the $80,000 progress claim was repudiatory, the Applicant did not accept that repudiation and instead unequivocally affirmed the Contract by serving the Notice of Suspension of Works and Notice of Extension of Time and by correspondence treating the Contract as continuing. The Applicant remained bound to perform his fundamental obligations and, by failing at least from 11 February 1999 to carry out and complete the work, objectively evinced repudiation of the Contract. The Respondents accepted that repudiation by their solicitors' letters of 4 March 1999 and 18 March 1999, thereby terminating the Contract.

Jurisdiction
Australia
Judgment Date
27 May 2000
Procedural Posture
Application Under S89 a of Home Building Act 1989; Home Building Dispute / Determination of Contractual Issues Concerning Repudiation and Termination, With Damages and Quantum Held Over
Outcome
The Tribunal determined that the Applicant repudiated the Contract and the Respondents accepted that repudiation and terminated the Contract; damages and quantum were left for later determination.
Legal Topics
['building Contract' 'repudiation' 'termination of Contract' 'progress Payments' 'suspension of Works' 'breach of Contract']
['contract Law' 'home Building Law'] ['building Contract' 'repudiation' 'termination of Contract' 'progress Payments' 'suspension of Works' 'breach of Contract']

Case Brief

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Procedural Posture

Application Under S89 a of Home Building Act 1989; Home Building Dispute / Determination of Contractual Issues Concerning Repudiation and Termination, With Damages and Quantum Held Over

Legal Issues

  1. 1 ['Which party repudiated the contract by breach.' 'Which party accepted that repudiation and terminated the contract.' 'Whether the Applicant accepted any repudiatory breach by the Respondents or instead affirmed the Contract.' "Whether the Applicant's refusal to carry out and complete building work was repudiatory."]

Ratio Decidendi

Even assuming the Respondents' non-payment of the $80,000 progress claim was repudiatory, the Applicant did not accept that repudiation and instead unequivocally affirmed the Contract by serving the Notice of Suspension of Works and Notice of Extension of Time and by correspondence treating the Contract as continuing. The Applicant remained bound to perform his fundamental obligations and, by failing at least from 11 February 1999 to carry out and complete the work, objectively evinced repudiation of the Contract. The Respondents accepted that repudiation by their solicitors' letters of 4 March 1999 and 18 March 1999, thereby terminating the Contract.

Court Disposition

The Tribunal determined that the Applicant repudiated the Contract and the Respondents accepted that repudiation and terminated the Contract; damages and quantum were left for later determination.

Orders

  • ['The Tribunal determines that the Applicant repudiated the Contract dated June 1998 between the parties and the Respondents accepted that repudiation and terminated the Contract.']