Dierikx v Merrick [2021] NSWCATCD 159

Dierikx v Merrick [2021] NSWCATCD 159

The Tribunal found, on an objective construction of the documents and evidence, that the building contract was between the applicants and the first respondent (Ty Merrick). The Tribunal rejected the respondents’ repudiation/termination arguments, finding that the first respondent had elected to continue the contract by his conduct and that purported notices of termination were ineffective. The Tribunal found a substantial number of building defects and incomplete works, adopting expert joint report assessments and accepting most of the applicants’ experts’ evidence. No section 18F defence was made out. The set-off for unpaid invoices was allowed, and as the relationship between the...

Parties
Applicant: Scott Dierikx; Applicant: Lynda Dierikx; First Respondent: Ty Merrick; Second Respondent: Ty Merrick Building Pty Ltd
Jurisdiction
Australia
Judgment Date
17 February 2021
Procedural Posture
Civil (consumer and Commercial) / Principal Judgment
Outcome
Application allowed in part; money order for damages in favour of applicants, with set-off for unpaid contract price; directions for submissions on costs.
Legal Topics
Repudiation, Termination of Contract, Home Building Act Statutory Warranties, Assessment of Damages, Defective Work, Mitigation of Loss, Section 18 F Defence
Building and Construction Law Contract Law Consumer Law Repudiation Termination of Contract Home Building Act Statutory Warranties Assessment of Damages Defective Work +2 more

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Parties

Scott Dierikx

Applicant

Lynda Dierikx

Applicant

Ty Merrick

First Respondent

Ty Merrick Building Pty Ltd

Second Respondent

Procedural Posture

Civil (consumer and Commercial) / Principal Judgment

Legal Issues

  1. 1 Whether the applicants contracted with the first or second respondent
  2. 2 Whether there was repudiation and termination of the contract
  3. 3 What damages, if any, were payable

Ratio Decidendi

The Tribunal found, on an objective construction of the documents and evidence, that the building contract was between the applicants and the first respondent (Ty Merrick). The Tribunal rejected the respondents’ repudiation/termination arguments, finding that the first respondent had elected to continue the contract by his conduct and that purported notices of termination were ineffective. The Tribunal found a substantial number of building defects and incomplete works, adopting expert joint report assessments and accepting most of the applicants’ experts’ evidence. No section 18F defence was made out. The set-off for unpaid invoices was allowed, and as the relationship between the...

Court Disposition

Application allowed in part; money order for damages in favour of applicants, with set-off for unpaid contract price; directions for submissions on costs.

Orders

  • The first respondent is to pay the applicants $198,451.38 immediately.
  • Any application for costs is to be made by written submissions to be filed and served on or before Wednesday 03 March 2021.