Grace v Pepe [2016] NSWCATAP 157

Grace v Pepe [2016] NSWCATAP 157

The notice to rectify issued by the owners was invalid under clause 13, as it lacked specificity, was served improperly via email, and implied invitation to return was insufficient to rectify the prior breach. The owners could not terminate the contract for prior defaults after electing to affirm, and thus their termination was not valid. Owners are only entitled to reimbursement for specific proven items rather than full damages for breach.

Parties
Appellant: Sam Grace; Respondent: Sophia Pepe; Respondent: Anthony Pepe
Jurisdiction
Australia
Judgment Date
22 July 2016
Procedural Posture
Appeal / Civil and Administrative Tribunal Appeal Panel Decision
Outcome
Appeal allowed in part
Legal Topics
Termination of Contract, Repudiation, Validity of Contractual Notices, Damages for Defective Workmanship, Residential Building Disputes
Contract Law Termination of Contract Repudiation Validity of Contractual Notices Damages for Defective Workmanship Residential Building Disputes

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Parties

Sam Grace

Appellant

Sophia Pepe

Respondent

Anthony Pepe

Respondent

Procedural Posture

Appeal / Civil and Administrative Tribunal Appeal Panel Decision

Legal Issues

  1. 1 Whether the owners validly terminated the contract
  2. 2 Whether the builder was entitled to payment for outstanding invoices
  3. 3 Validity of notices to rectify under the contract

Ratio Decidendi

The notice to rectify issued by the owners was invalid under clause 13, as it lacked specificity, was served improperly via email, and implied invitation to return was insufficient to rectify the prior breach. The owners could not terminate the contract for prior defaults after electing to affirm, and thus their termination was not valid. Owners are only entitled to reimbursement for specific proven items rather than full damages for breach.

Court Disposition

Appeal allowed in part

Orders

  • Quash orders made below and in lieu order that the builder Sam Grace pay the owners Anthony and Sophia Pepe the sum of $10,281.85.
  • No order as to costs.