Keith v M & M Building Pty Ltd; M & M Building Pty Ltd v Keith [2016] NSWCATCD 43

Keith v M & M Building Pty Ltd; M & M Building Pty Ltd v Keith [2016] NSWCATCD 43

The builder's fundamental breach by failure to complete works with due diligence and within time amounted to repudiation at common law. The homeowners' purported contractual termination, though defective, sufficed to communicate acceptance of the repudiation and brought the contract to an end at common law. The homeowners are entitled to damages for rectification and completion, and repayment of overpayments, while the builder is not entitled to any further payment or variations that were not compliant with statutory or contractual requirements.

Parties
Applicant (homeowner): Duncan Keith; Applicant (homeowner): Emma Keith; Respondent (builder): M & M Building Pty Ltd
Jurisdiction
Australia
Judgment Date
06 May 2016
Procedural Posture
Consumer/trade (building Dispute) / Final Hearing and Decision
Outcome
Builder to pay homeowners specified sum; applications otherwise dismissed; ancillary orders for provision of receipts and process for costs.
Legal Topics
Termination of Building Contract, Damages for Defective Work, Contract Repudiation, Home Building Statutory Warranties
Construction Law Contract Law Consumer Law Termination of Building Contract Damages for Defective Work Contract Repudiation Home Building Statutory Warranties

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Parties

Duncan Keith

Applicant (homeowner)

Emma Keith

Applicant (homeowner)

M & M Building Pty Ltd

Respondent (builder)

Procedural Posture

Consumer/trade (building Dispute) / Final Hearing and Decision

Legal Issues

  1. 1 Did the homeowners validly terminate the building contract?
  2. 2 Are the homeowners entitled to damages and what is the measure of those damages?
  3. 3 Is the builder entitled to any payment or set-off under the contract?

Ratio Decidendi

The builder's fundamental breach by failure to complete works with due diligence and within time amounted to repudiation at common law. The homeowners' purported contractual termination, though defective, sufficed to communicate acceptance of the repudiation and brought the contract to an end at common law. The homeowners are entitled to damages for rectification and completion, and repayment of overpayments, while the builder is not entitled to any further payment or variations that were not compliant with statutory or contractual requirements.

Court Disposition

Builder to pay homeowners specified sum; applications otherwise dismissed; ancillary orders for provision of receipts and process for costs.

Orders

  • The application in respect of Shaun Mowbray and Malcolm Blair is dismissed as withdrawn.
  • The builder, M & M Building Pty Ltd, shall pay to the homeowners Duncan Keith and Emma Keith, jointly, the sum of $421,960.69 immediately.