The Craftsmen Restoration & Renovations Pty Ltd v Boland [2011] NSWCA 147

The Craftsmen Restoration & Renovations Pty Ltd v Boland [2011] NSWCA 147

The Tribunal erred in law by treating the owners' unpaid progress payment No. 8 as not being a breach for the purposes of clause 12.3. Properly construed, because the owners were in breach in August 2003, their clause 12.3 notice purporting to terminate the contract was invalid. However, invalidity of the notice did not necessarily establish repudiation or the builder's entitlement to accept repudiation; those issues, and related damages issues, involved factual components that the Common Law Division was not entitled to determine on an appeal confined to a matter of law. The Supreme Court orders therefore had to be set aside and the outstanding issues remitted to the Tribunal...

Jurisdiction
Australia
Judgment Date
08 June 2011
Procedural Posture
Civil Appeal Concerning Residential Building Contract Dispute / Court of Appeal Appeal From Judgments and Orders of Howie J in the Common Law Division on Appeals From the Consumer, Trader and Tenancy Tribunal; Owners Sought Extension of Time to Seek Leave to Cross Appeal
Outcome
Builder granted leave to appeal to the extent necessary; appeal allowed in substance, Supreme Court orders set aside and matter remitted to the Tribunal; owners' application for extension of time to seek leave to cross-appeal refused.
Legal Topics
['termination of Contract' 'repudiation' 'residential Building Work' 'rectification Damages' 'appeal Limited to a Matter of Law' 'remitter to Tribunal' 'costs']
['contract Law' 'building and Construction' 'civil Procedure' 'administrative and Tribunal Appeals'] ['termination of Contract' 'repudiation' 'residential Building Work' 'rectification Damages' 'appeal Limited to a Matter of Law' 'remitter to Tribunal' 'costs']

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Procedural Posture

Civil Appeal Concerning Residential Building Contract Dispute / Court of Appeal Appeal From Judgments and Orders of Howie J in the Common Law Division on Appeals From the Consumer, Trader and Tenancy Tribunal; Owners Sought Extension of Time to Seek Leave to Cross Appeal

Legal Issues

  1. 1 ["Whether, on the proper construction of clause 12.3 of the contract, the owners' notice purporting to terminate the contract was valid while they were in breach of their obligation to pay progress payment No. 8." 'Whether an invalid notice of termination necessarily constituted repudiation of the contract by the owners and whether the builder could accept any repudiation.' 'Whether the Common Law Division, on an appeal limited to a decision with respect to a matter of law under s 67 of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), could make the factual findings it made instead of remitting the matter to the Tribunal.' "How the owners' damages for defective building work, storage costs, consultant and expert fees, builders margin and interest on retention money were to be assessed in light of the unresolved termination issue." 'Whether the owners should receive an extension of time to seek leave to file a notice of cross-appeal.']

Ratio Decidendi

The Tribunal erred in law by treating the owners' unpaid progress payment No. 8 as not being a breach for the purposes of clause 12.3. Properly construed, because the owners were in breach in August 2003, their clause 12.3 notice purporting to terminate the contract was invalid. However, invalidity of the notice did not necessarily establish repudiation or the builder's entitlement to accept repudiation; those issues, and related damages issues, involved factual components that the Common Law Division was not entitled to determine on an appeal confined to a matter of law. The Supreme Court orders therefore had to be set aside and the outstanding issues remitted to the Tribunal...

Court Disposition

Builder granted leave to appeal to the extent necessary; appeal allowed in substance, Supreme Court orders set aside and matter remitted to the Tribunal; owners' application for extension of time to seek leave to cross-appeal refused.

Orders

  • ['To the extent necessary, grant the builder leave to appeal from the judgments and orders of Howie J in the Common Law Division.' 'In respect of both appeals brought to the Common Law Division, set aside the orders of Howie J made on 2 March 2009.' 'Answer the question of law raised by the builder\'s appeal in...