Visual Building Construction Pty Ltd v Armitstead (No 2) [2019] NSWCA 280

Visual Building Construction Pty Ltd v Armitstead (No 2) [2019] NSWCA 280

The appeal was dismissed because the primary judge did not err in finding that the Contract was validly terminated: cl 15 did not require a 10 business day notice period where the relevant default was incapable of being remedied within that period, and the failure to obtain the required approvals was found as a matter of fact to be incapable of cure within that time. In any event, the appellant had breached the Contract by failing to obtain a Construction Certificate before commencing works or at all, the damages award was not challenged, and the availability of damages did not depend on termination.

Jurisdiction
Australia
Judgment Date
21 November 2019
Procedural Posture
Civil Appeal Concerning Termination of a Building Contract and Damages for Breach of Contract / Appeal From the District Court of New South Wales Decision of Sorby ADCJ Dated 21 August 2018
Outcome
Appeal dismissed with costs
Legal Topics
['termination of Contract' 'breach of Building Contract' 'construction Certificate' 'notice to Remedy Default' 'repudiation' 'damages for Breach of Contract']
['contract Law' 'building and Construction' 'planning and Development'] ['termination of Contract' 'breach of Building Contract' 'construction Certificate' 'notice to Remedy Default' 'repudiation' 'damages for Breach of Contract']

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Procedural Posture

Civil Appeal Concerning Termination of a Building Contract and Damages for Breach of Contract / Appeal From the District Court of New South Wales Decision of Sorby ADCJ Dated 21 August 2018

Legal Issues

  1. 1 ['Whether the primary judge erred in finding that the twice varied building contract was validly terminated.' "Whether cl 15 of the Contract required the respondents to give 10 business days' notice to remedy defaults before terminating." 'Whether defaults concerning the failure to obtain a Construction Certificate or Building Certificate were capable of being remedied within 10 business days.' 'Whether damages for breach of contract were available irrespective of valid termination.' 'Whether the appellant repudiated the Contract by taking no steps to obtain a Building Certificate or Construction Certificate after the Order 19 Notice.']

Ratio Decidendi

The appeal was dismissed because the primary judge did not err in finding that the Contract was validly terminated: cl 15 did not require a 10 business day notice period where the relevant default was incapable of being remedied within that period, and the failure to obtain the required approvals was found as a matter of fact to be incapable of cure within that time. In any event, the appellant had breached the Contract by failing to obtain a Construction Certificate before commencing works or at all, the damages award was not challenged, and the availability of damages did not depend on termination.

Court Disposition

Appeal dismissed with costs

Orders

  • ['Appeal dismissed with costs']