Nu-Stone Building Pty Ltd v McInerney [2022] NSWCATAP 285

Nu-Stone Building Pty Ltd v McInerney [2022] NSWCATAP 285

The Tribunal erred by failing to include the value of agreed variations (1, 2, 5) in its contract reconciliation and by including the value of Payment Claim 4, which should have been excluded from completed works. These errors affected the calculation of the net amount payable, requiring both appeals to be allowed and consideration of revised orders and costs.

Jurisdiction
Australia
Judgment Date
31 August 2022
Procedural Posture
Appeal / Interlocutory Orders Awaiting Final Resolution
Outcome
Both appeals allowed in relation to errors regarding contract reconciliation; matter remitted for further submissions on final orders and costs
Legal Topics
['calculation of Damages' 'contract Termination' 'quantum Meruit' 'rectification Costs' 'variations' 'procedural Fairness']
['building and Construction'] ['calculation of Damages' 'contract Termination' 'quantum Meruit' 'rectification Costs' 'variations' 'procedural Fairness']

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Procedural Posture

Appeal / Interlocutory Orders Awaiting Final Resolution

Legal Issues

  1. 1 ['Whether Homeowners lawfully terminated the contract entitling them to completion costs' 'Determination of reasonable and necessary rectification costs' 'Calculation of reasonable and necessary completion costs' 'Assessment of value for contract works and variations' 'Whether Tribunal erred by including Payment Claim 4' 'Whether Tribunal erred by excluding tendered evidence (procedural fairness)']

Ratio Decidendi

The Tribunal erred by failing to include the value of agreed variations (1, 2, 5) in its contract reconciliation and by including the value of Payment Claim 4, which should have been excluded from completed works. These errors affected the calculation of the net amount payable, requiring both appeals to be allowed and consideration of revised orders and costs.

Court Disposition

Both appeals allowed in relation to errors regarding contract reconciliation; matter remitted for further submissions on final orders and costs

Orders

  • ['Time for filing appeal extended to 23 February 2022' 'Each party to provide draft orders and submissions on costs by 14 September 2022' 'Responses due by 28 September 2022' 'Submissions to address whether final hearing is required per s 50(2) Civil and Administrative Tribunal Act 2013 (NSW)' "Stay of Tribunal's...