Uszok v Henley Properties (NSW) Pty Limited [2007] NSWCA 31

Uszok v Henley Properties (NSW) Pty Limited [2007] NSWCA 31

Practical completion had not been achieved because the respondent's own evidence established that omitted appliances were not a minor defect and no term could be implied by custom or usage consistently with the express contract to treat such omissions as compatible with practical completion. The evidence also showed substantial defects in the slab, piers, frames, trusses and other items, and the trial judge erred in treating the cross-claim as unsupported by evidence, in failing to give adequate reasons, and in preferring expert evidence beyond the matters actually addressed by that expert. The trial miscarried sufficiently, including in the treatment of damages evidence tendered by the...

Jurisdiction
Australia
Judgment Date
28 February 2007
Procedural Posture
Appeal From District Court Judgment in Building Contract Proceedings and Cross Claim / Court of Appeal Judgment
Outcome
Appeal allowed; District Court verdict, judgment and orders set aside; judgment entered for the appellant on the Statement of Claim and on the cross-claim with damages to be assessed; matter remitted to the District Court for assessment of damages.
Legal Topics
['building Contract' 'practical Completion' 'implied Term by Custom or Usage' 'adequacy of Reasons' 'expert Evidence' 'unrepresented Litigant' 'assessment of Damages for Defective Work']
['contract Law' 'building and Construction' 'civil Procedure' 'damages'] ['building Contract' 'practical Completion' 'implied Term by Custom or Usage' 'adequacy of Reasons' 'expert Evidence' 'unrepresented Litigant' 'assessment of Damages for Defective Work']

Case Brief

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Procedural Posture

Appeal From District Court Judgment in Building Contract Proceedings and Cross Claim / Court of Appeal Judgment

Legal Issues

  1. 1 ['Whether practical completion had been achieved under the building contract when appliances had not been installed and alleged defects remained.' 'Whether a term could be implied by custom or usage that appliances were installed only on handover.' "Whether the trial judge erred in finding there was no evidence supporting items in the appellant's cross-claim for defective work." 'Whether the trial judge gave adequate reasons and properly engaged with expert evidence.' 'Whether the conduct of the trial involving an unrepresented litigant caused a miscarriage warranting remittal for assessment of damages.']

Ratio Decidendi

Practical completion had not been achieved because the respondent's own evidence established that omitted appliances were not a minor defect and no term could be implied by custom or usage consistently with the express contract to treat such omissions as compatible with practical completion. The evidence also showed substantial defects in the slab, piers, frames, trusses and other items, and the trial judge erred in treating the cross-claim as unsupported by evidence, in failing to give adequate reasons, and in preferring expert evidence beyond the matters actually addressed by that expert. The trial miscarried sufficiently, including in the treatment of damages evidence tendered by the...

Court Disposition

Appeal allowed; District Court verdict, judgment and orders set aside; judgment entered for the appellant on the Statement of Claim and on the cross-claim with damages to be assessed; matter remitted to the District Court for assessment of damages.

Orders

  • ['Appeal allowed.' 'Verdict, judgment and orders of the trial judge set aside.' 'Order that there be judgment for the appellant on the Statement of Claim.' 'Order that there be judgment for the appellant on the cross-claim with damages to be assessed.' 'Remit the matter to the District Court for assessment of...