Urban Constructions (NSW) Pty Ltd v Brett Shearer and Bronwyn Shearer [2015] NSWCATCD 9

Urban Constructions (NSW) Pty Ltd v Brett Shearer and Bronwyn Shearer [2015] NSWCATCD 9

Although the builder failed to obtain the insurance required by section 92 of the Home Building Act 1989, its conduct was characterised as inept or careless rather than a deliberate contravention, the owners were not vulnerable consumers, the builder had attempted belatedly to obtain retrospective insurance, and refusing relief could leave the owners with the benefit of work and materials without paying for them. It was therefore just and equitable under section 94(1A) to permit recovery on a quantum meruit basis. The Tribunal preferred Mr Zakos' valuation of the work at $452,600.17, deducted payments of $235,000.00 and defective work valued at $47,380.14, and held that the owners must...

Jurisdiction
Australia
Judgment Date
10 February 2015
Procedural Posture
Building Claim Under the Home Building Act 1989 Concerning a Costs Plus Residential Building Agreement, Quantum Meruit, Defects and Unfinished Work / Principal Judgment After Four Hearing Days
Outcome
Application allowed in part; respondents ordered to pay the applicant $170,220.03, with liberty for either party to apply for costs.
Legal Topics
['section 94(1 A) of the Home Building Act 1989' 'quantum Meruit' 'home Owners Warranty Insurance' 'residential Building Work' 'defective Work' 'incomplete Work' 'expert Evidence' 'costs Applications']
['home Building' 'consumer and Commercial' 'contract' 'restitution' 'civil Procedure'] ['section 94(1 A) of the Home Building Act 1989' 'quantum Meruit' 'home Owners Warranty Insurance' 'residential Building Work' 'defective Work' 'incomplete Work' 'expert Evidence' 'costs Applications']

Case Brief

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Procedural Posture

Building Claim Under the Home Building Act 1989 Concerning a Costs Plus Residential Building Agreement, Quantum Meruit, Defects and Unfinished Work / Principal Judgment After Four Hearing Days

Legal Issues

  1. 1 ['Whether the builder was barred from recovery because no contract of insurance required by section 92 of the Home Building Act 1989 was in force.' 'Whether it was just and equitable under section 94(1A) of the Home Building Act 1989 to allow the builder to recover money on a quantum meruit basis despite the absence of insurance.' 'What was the reasonable value of the building work carried out by the builder.' 'What deductions should be made for defective work, payments already made and alleged incomplete work.' 'Whether the owners proved particular defects and rectification costs.']

Ratio Decidendi

Although the builder failed to obtain the insurance required by section 92 of the Home Building Act 1989, its conduct was characterised as inept or careless rather than a deliberate contravention, the owners were not vulnerable consumers, the builder had attempted belatedly to obtain retrospective insurance, and refusing relief could leave the owners with the benefit of work and materials without paying for them. It was therefore just and equitable under section 94(1A) to permit recovery on a quantum meruit basis. The Tribunal preferred Mr Zakos' valuation of the work at $452,600.17, deducted payments of $235,000.00 and defective work valued at $47,380.14, and held that the owners must...

Court Disposition

Application allowed in part; respondents ordered to pay the applicant $170,220.03, with liberty for either party to apply for costs.

Orders

  • ['Brett Shearer and Bronwyn Shearer must pay Urban Constructions (NSW) Pty Ltd the sum of $170,220.03 within 21 days of the date of this order.' 'Either party is at liberty to make a costs application in these proceedings.' 'Any costs application pursuant to section 53 of the Consumer, Trader and Tenancy Tribunal...