Gallagher v Start Construction Pty Limited [2017] NSWDC 440

Gallagher v Start Construction Pty Limited [2017] NSWDC 440

The plaintiff was entitled to judgment because she proved some defects and omissions amounting to breach and recoverable loss, but many claimed electrical omissions failed because Revision 72 was not proved to be a contractual document and claims tied to prime cost items or provisional sums were not recoverable without proof of unexpended allowances. Assessing the evidence defect by defect and by trade where necessary, the Court allowed $149,980 for defects plus $24,576.69 interest, giving judgment for $174,556.69.

Jurisdiction
Australia
Judgment Date
10 October 2017
Procedural Posture
Civil Building Contract Defects and Omissions Claim / Assessment/hearing on the Merits After the Defence Was Struck Out Under R 12.7 of the Uniform Civil Procedure Rules 2005; Defendant Did Not Appear
Outcome
Judgment for the plaintiff in the sum of $174,556.69; defendant to pay the plaintiff's costs.
Legal Topics
['residential Building Contract' 'defective and Incomplete Building Work' 'statutory Warranties' 'prime Cost Items and Provisional Sums' 'assessment of Damages' 'scott Schedule' 'joint Contracting Owners' 'default and Struck Out Defence']
['building and Construction' 'contract' 'civil Procedure' 'damages'] ['residential Building Contract' 'defective and Incomplete Building Work' 'statutory Warranties' 'prime Cost Items and Provisional Sums' 'assessment of Damages' 'scott Schedule' 'joint Contracting Owners' 'default and Struck Out Defence']

Case Brief

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Procedural Posture

Civil Building Contract Defects and Omissions Claim / Assessment/hearing on the Merits After the Defence Was Struck Out Under R 12.7 of the Uniform Civil Procedure Rules 2005; Defendant Did Not Appear

Legal Issues

  1. 1 ['Whether Mrs Gallagher as the sole plaintiff could obtain judgment despite the building contract being made by both Mr and Mrs Gallagher with Start.' "Whether the plaintiff established contractual obligations, breach and damages for alleged defects and omissions notwithstanding the defendant's default and non-appearance." 'Whether Revision 72 was a contractual electrical plan evidencing the work Start was obliged to perform.' 'Whether claims relating to prime cost items or provisional sums could be recovered without proof that the relevant allowances were unexpended.' 'How damages should be assessed where many non-electrical defects were costed only by trade category rather than by individual defect.']

Ratio Decidendi

The plaintiff was entitled to judgment because she proved some defects and omissions amounting to breach and recoverable loss, but many claimed electrical omissions failed because Revision 72 was not proved to be a contractual document and claims tied to prime cost items or provisional sums were not recoverable without proof of unexpended allowances. Assessing the evidence defect by defect and by trade where necessary, the Court allowed $149,980 for defects plus $24,576.69 interest, giving judgment for $174,556.69.

Court Disposition

Judgment for the plaintiff in the sum of $174,556.69; defendant to pay the plaintiff's costs.

Orders

  • ['Judgment for the plaintiff in the sum of $174,556.69.' "Defendant to pay the plaintiff's costs."]