Llamas v Rockwall Constructions Pty Ltd; Rockwall Constructions Pty Ltd v Llamas [2019] NSWCATCD 75

Llamas v Rockwall Constructions Pty Ltd; Rockwall Constructions Pty Ltd v Llamas [2019] NSWCATCD 75

Homeowners are not entitled to damages for 'overpayment' following their own repudiation of the contract, as they failed to establish a breach of an accrued right up to the date of termination or any separate actionable ground. However, the homeowners are entitled to damages for defective work performed prior to the repudiation, as statutory warranties under the Home Building Act 1989 (NSW) survive termination and entitle them to the cost of rectification. Builder’s claims failed for lack of evidentiary support and failure to establish quantum or breach.

Parties
Applicant: Rafael Llamas; Applicant: Kay Llamas; Respondent: Rockwall Constructions Pty Ltd; Applicant: Rockwall Constructions Pty Ltd; Respondent: Kaye Llamas; Respondent: Rafael Llamas
Jurisdiction
Australia
Judgment Date
01 November 2019
Procedural Posture
Tribunal (civil and Administrative) Consumer and Commercial Division / Final Determination After Remittal From Appeal Panel
Outcome
Homeowners claim for defective work allowed; claim for overpayment and builder’s cross-claim dismissed. Orders made for payment of $58,908.85 and costs as agreed or assessed.
Legal Topics
Repudiation of Contract, Damages for Defective Work, Statutory Warranties, Assessment of Damages, Home Building Contracts
Building and Construction Contract Law Consumer Law Repudiation of Contract Damages for Defective Work Statutory Warranties Assessment of Damages Home Building Contracts

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Parties

Rafael Llamas

Applicant

Kay Llamas

Applicant

Rockwall Constructions Pty Ltd

Respondent

Rockwall Constructions Pty Ltd

Applicant

Kaye Llamas

Respondent

Rafael Llamas

Respondent

Procedural Posture

Tribunal (civil and Administrative) Consumer and Commercial Division / Final Determination After Remittal From Appeal Panel

Legal Issues

  1. 1 Whether homeowners can recover damages for overpayment to builder following repudiation of the contract by the homeowners
  2. 2 Whether damages for cost of rectifying defective work are available when the contract has been repudiated by the homeowners
  3. 3 Whether the builder is entitled to damages or loss of profit following homeowners' repudiation

Ratio Decidendi

Homeowners are not entitled to damages for 'overpayment' following their own repudiation of the contract, as they failed to establish a breach of an accrued right up to the date of termination or any separate actionable ground. However, the homeowners are entitled to damages for defective work performed prior to the repudiation, as statutory warranties under the Home Building Act 1989 (NSW) survive termination and entitle them to the cost of rectification. Builder’s claims failed for lack of evidentiary support and failure to establish quantum or breach.

Court Disposition

Homeowners claim for defective work allowed; claim for overpayment and builder’s cross-claim dismissed. Orders made for payment of $58,908.85 and costs as agreed or assessed.

Orders

  • In Matter HB 18/47941 Rockwall Constructions Pty Ltd is to pay Rafael Llamas and Kay Llamas the sum of $58,908.85 immediately.
  • In Matter HB 18/47932, the proceedings are dismissed.