Scott v Stewart [2021] NSWCATAP 326

Scott v Stewart [2021] NSWCATAP 326

The Tribunal's finding that the Builder was in substantial breach was open and correct because the Builder did not hold the appropriate licence and was therefore incapable of lawfully performing the residential building work; that legal incapacity was distinct from any physical inability to access the site caused by the Homeowners' suspension of the works. The Homeowners validly exercised an express contractual right to terminate, and the Builder's further points on readiness, willingness, waiver, abandonment and crystallisation of the cause of action either failed or had not been raised below. The Tribunal's rectification order was also open on the evidence, and s 79U of the Fair Trading...

Jurisdiction
Australia
Judgment Date
22 October 2021
Procedural Posture
Appeals From a Decision of the Consumer and Commercial Division of the Civil and Administrative Tribunal in a Home Building Dispute / Appeal Panel Decision on Leave to Appeal and Appeals
Outcome
Leave to appeal refused in both proceedings and both appeals otherwise dismissed; costs submissions invited.
Legal Topics
['termination on Notice' 'substantial Breach' 'repudiation' 'election' 'unlicensed Residential Building Work' 'rectification Work Orders' 'leave to Appeal']
['contract Law' 'home Building' 'civil Procedure' 'tribunal Appeals'] ['termination on Notice' 'substantial Breach' 'repudiation' 'election' 'unlicensed Residential Building Work' 'rectification Work Orders' 'leave to Appeal']

Case Brief

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Procedural Posture

Appeals From a Decision of the Consumer and Commercial Division of the Civil and Administrative Tribunal in a Home Building Dispute / Appeal Panel Decision on Leave to Appeal and Appeals

Legal Issues

  1. 1 ["Whether the Tribunal erred in finding that the Builder's lack of the necessary licence was a substantial breach of the contract entitling the Homeowners to terminate." "Whether the Homeowners' earlier suspension of works or alleged repudiation prevented them from relying on an express contractual right of termination." 'Whether the Tribunal erred in concluding that the Homeowners validly terminated the contract by the letter of 5 May 2020.' 'Whether the Tribunal erred in awarding damages to the Homeowners.' 'Whether the Tribunal erred by ordering demolition and reinstatement of the drive/verge crossover rather than a money order for demolition and reconstruction of the entire driveway.' 'Whether s 79U(1) of the Fair Trading Act 1987 (NSW) applied to the work order.']

Ratio Decidendi

The Tribunal's finding that the Builder was in substantial breach was open and correct because the Builder did not hold the appropriate licence and was therefore incapable of lawfully performing the residential building work; that legal incapacity was distinct from any physical inability to access the site caused by the Homeowners' suspension of the works. The Homeowners validly exercised an express contractual right to terminate, and the Builder's further points on readiness, willingness, waiver, abandonment and crystallisation of the cause of action either failed or had not been raised below. The Tribunal's rectification order was also open on the evidence, and s 79U of the Fair Trading...

Court Disposition

Leave to appeal refused in both proceedings and both appeals otherwise dismissed; costs submissions invited.

Orders

  • ['In proceedings 2021/00146721: leave to appeal refused.' 'In proceedings 2021/00146721: appeal otherwise dismissed.' 'In proceedings 2021/00180102: leave to appeal refused.' 'In proceedings 2021/00180102: appeal otherwise dismissed.' 'Each party is to file submissions as to the costs of the appeals within seven...