Owners Corporation Strata Plan 70762 v L & C Platt Constructions Pty Ltd [2014] NSWCATCD 8

Owners Corporation Strata Plan 70762 v L & C Platt Constructions Pty Ltd [2014] NSWCATCD 8

The respondent did not repudiate the Building Contract: it did not walk off the job on 17 November 2008, invoice 91 was overdue, and the 3 December 2008 notice of suspension was valid or at least not repudiatory. The applicant did not unequivocally accept any alleged repudiation. By April or May 2009 the parties had objectively abandoned the Building Contract, relieving the respondent from future performance and preventing the applicant from recovering loss of bargain or Dankav completion costs. The applicant proved only limited incomplete work allowances of $1,075.00 for items 6, 8, 9 and 10 and $6,000.00 for item 6.1, and the respondent consented to repayment of the $6,500.00 excess and...

Jurisdiction
Australia
Judgment Date
10 January 2014
Procedural Posture
Home Building Claim Concerning Alleged Defective and Incomplete Rectification Works Under a Building Contract / Principal Judgment After Hearing
Outcome
Applicant awarded $47,296.00; costs reserved pending written submissions.
Legal Topics
['defective Building Work' 'incomplete Building Work' 'repudiation' 'suspension of Works' 'abandonment of Contract' 'statutory Warranties' 'damages' 'progress Payments']
['home Building' 'contract Law' 'consumer and Commercial Disputes'] ['defective Building Work' 'incomplete Building Work' 'repudiation' 'suspension of Works' 'abandonment of Contract' 'statutory Warranties' 'damages' 'progress Payments']

Case Brief

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Procedural Posture

Home Building Claim Concerning Alleged Defective and Incomplete Rectification Works Under a Building Contract / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the respondent repudiated the Building Contract by leaving the site, ceasing work or issuing a notice of suspension of works.' "Whether the respondent's notice of suspension of works dated 3 December 2008 was valid under the Building Contract." 'Whether the Building Contract was terminated by repudiation or instead abandoned by the parties.' 'Whether the applicant could recover the additional cost of completing works through Dankav Pty Ltd.' 'Whether the applicant proved defective or incomplete work by the respondent and the amount of any allowance payable.' 'Whether the applicant was entitled to recover the excess and deposit paid to the respondent.']

Ratio Decidendi

The respondent did not repudiate the Building Contract: it did not walk off the job on 17 November 2008, invoice 91 was overdue, and the 3 December 2008 notice of suspension was valid or at least not repudiatory. The applicant did not unequivocally accept any alleged repudiation. By April or May 2009 the parties had objectively abandoned the Building Contract, relieving the respondent from future performance and preventing the applicant from recovering loss of bargain or Dankav completion costs. The applicant proved only limited incomplete work allowances of $1,075.00 for items 6, 8, 9 and 10 and $6,000.00 for item 6.1, and the respondent consented to repayment of the $6,500.00 excess and...

Court Disposition

Applicant awarded $47,296.00; costs reserved pending written submissions.

Orders

  • ['The respondent to pay the applicant $47,296.00 within 21 days of the date of this order.' 'Costs reserved pending receipt of written submissions to be filed and served by 29 January 2014 in the case of the applicant and by 7 February 2014 in the case of the respondent.']