Kanatlarovski v Vasilkov [2013] NSWDC 185

Kanatlarovski v Vasilkov [2013] NSWDC 185

Section 32AA of the Home Building Act 1989 did not render the parties' contract void and unenforceable: its text, context, purpose, substantial penalty and available defence did not show an intention to deprive an owner-builder of civil remedies, and the plaintiff in any event did all that could reasonably be required to prevent a contravention so s 10 was not enlivened. The defendant breached the contract, including terms implied by s 18B, by constructing a slab that was not proper, workmanlike, in accordance with plans or fit for purpose, and the plaintiff was entitled to reasonable demolition, removal and associated costs, less the unpaid contract balance.

Jurisdiction
Australia
Judgment Date
16 July 2013
Procedural Posture
Civil Claim for Breach of Contract, Statutory Warranties, Misleading and Deceptive Conduct, Unconscionable Conduct and Negligence Concerning Construction of a Concrete Slab / Principal Judgment After Hearing
Outcome
Verdict and judgment for the plaintiff in the sum of $30,838.75.
Legal Topics
['breach of Contract' 'home Building Act 1989 S 32 Aa' 'owner Builder Permits' 'unlicensed Residential Building Work' 'statutory Warranties' 'misleading and Deceptive Conduct' 'unconscionable Conduct' 'rectification Damages']
['contract Law' 'building and Construction' 'consumer Law'] ['breach of Contract' 'home Building Act 1989 S 32 Aa' 'owner Builder Permits' 'unlicensed Residential Building Work' 'statutory Warranties' 'misleading and Deceptive Conduct' 'unconscionable Conduct' 'rectification Damages']

Case Brief

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Procedural Posture

Civil Claim for Breach of Contract, Statutory Warranties, Misleading and Deceptive Conduct, Unconscionable Conduct and Negligence Concerning Construction of a Concrete Slab / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether a residential building contract made by an owner-builder with an unlicensed contractor in contravention of Home Building Act 1989 s 32AA was void and unenforceable' 'Whether s 10 of the Home Building Act 1989 barred the plaintiff from recovering damages' 'Whether the defendant breached the contract and statutory warranties by constructing a defective concrete slab' 'Whether the pleaded misleading and deceptive conduct and unconscionable conduct claims disclosed a cause of action' 'What damages were recoverable for demolition, removal and associated costs, and whether credit had to be given for the unpaid contract balance']

Ratio Decidendi

Section 32AA of the Home Building Act 1989 did not render the parties' contract void and unenforceable: its text, context, purpose, substantial penalty and available defence did not show an intention to deprive an owner-builder of civil remedies, and the plaintiff in any event did all that could reasonably be required to prevent a contravention so s 10 was not enlivened. The defendant breached the contract, including terms implied by s 18B, by constructing a slab that was not proper, workmanlike, in accordance with plans or fit for purpose, and the plaintiff was entitled to reasonable demolition, removal and associated costs, less the unpaid contract balance.

Court Disposition

Verdict and judgment for the plaintiff in the sum of $30,838.75.

Orders

  • ['Verdict and judgment for the plaintiff in the sum of $30,838.75.' 'The exhibits be returned.' 'Listed on 18 July 2013 at 2.00 pm for costs argument.']