Little v J & K Homes Pty Ltd [2017] NSWCATAP 84

Little v J & K Homes Pty Ltd [2017] NSWCATAP 84

The Tribunal erred in law in determining that the appellants could not maintain their claim for work orders under the Home Building Act 1989 (NSW) while the contract remained on foot by misapplying the principle in Brewarrina Shire Council v Beckhaus Civil Pty Ltd, which is concerned with damages for defective work,...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
21 April 2017
Procedural Posture
Appeal / Appeal Determination
Outcome
appeal allowed; orders below set aside; proceedings remitted
Legal Topics
['home Building Contract' 'statutory Warranties' 'specific Performance' 'standing to Claim' 'application of Brewarrina Principle']
['contract Law' 'home Building'] ['home Building Contract' 'statutory Warranties' 'specific Performance' 'standing to Claim' 'application of Brewarrina Principle']

Source-derived case record

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

Appeal / Appeal Determination

Legal Issues

  1. 1 ['Whether appellants could maintain claims for performance of work under the contract while it remained on foot' 'Whether appellants could maintain a claim for breach of statutory warranties while contract remained on foot' 'Whether Tribunal erred by misapplying Brewarrina Shire Council v Beckhaus Civil Pty Ltd' 'Whether Tribunal erred in dismissing claim for want of standing' 'Whether statutory amendments displace the Brewarrina principle for statutory warranty claims']

Ratio Decidendi

The Tribunal erred in law in determining that the appellants could not maintain their claim for work orders under the Home Building Act 1989 (NSW) while the contract remained on foot by misapplying the principle in Brewarrina Shire Council v Beckhaus Civil Pty Ltd, which is concerned with damages for defective work, not claims for work orders or specific performance. The decision was set aside and remitted for redetermination.

Court Disposition

appeal allowed; orders below set aside; proceedings remitted

Orders

  • ['Appeal allowed/upheld.' 'Set aside orders made by the Tribunal on 9 November 2016 and 8 February 2017.' 'Remit the proceedings to the Consumer and Commercial Division of the Tribunal for determination in accordance with these reasons.' "Respondent to pay appellants' costs of the appeal." 'Costs of the proceedings...