Ling v Xu [2022] NSWCATCD 77

Ling v Xu [2022] NSWCATCD 77

The builder held only a painter and decorator's licence but contracted to and performed residential building work extending beyond decorating and painting, thereby breaching s 12 and the implied warranty in s 18B(1)(c) of the Home Building Act 1989 (NSW). That breach was sufficiently serious to entitle the owner to terminate the contract on 7 May 2021. The owner was entitled to damages for defective and incomplete work, assessed at $89,406.39 before credit, less a $23,200 credit for the unpaid portion of the contract price, resulting in $66,206.39 payable by the builder. The builder's cross application was dismissed because he provided no evidence to support his restitution claim and it...

Jurisdiction
Australia
Judgment Date
09 May 2022
Procedural Posture
Building Claim Arising Out of Residential Building Work and Cross Application / Principal Judgment After Hearing
Outcome
The owner's claim succeeded in part and the builder's cross application HB 21/43872 was dismissed.
Legal Topics
['termination' 'construction of Contract' 'unlicensed Contractor' 'quantum Meruit' 'statutory Warranties' 'defective and Incomplete Residential Building Work' 'damages']
['building and Construction' 'consumer and Commercial' 'contract Law'] ['termination' 'construction of Contract' 'unlicensed Contractor' 'quantum Meruit' 'statutory Warranties' 'defective and Incomplete Residential Building Work' 'damages']

Case Brief

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Procedural Posture

Building Claim Arising Out of Residential Building Work and Cross Application / Principal Judgment After Hearing

Legal Issues

  1. 1 ["What work and price formed the parties' residential building contracts, including the December 2020 agreement and March 2021 additional works agreement." 'Whether the builder held an appropriate licence for the residential building work he contracted to perform and performed.' 'Whether the owner was entitled to terminate the contract because the builder carried out work beyond the scope of his painter and decorator licence.' 'What damages were payable for defective work and incomplete work, including any credit for the unpaid contract price.' 'Whether rectification by the builder should be ordered under s 48MA of the Home Building Act 1989 (NSW).' "Whether the builder's cross application for restitution or other relief should be granted."]

Ratio Decidendi

The builder held only a painter and decorator's licence but contracted to and performed residential building work extending beyond decorating and painting, thereby breaching s 12 and the implied warranty in s 18B(1)(c) of the Home Building Act 1989 (NSW). That breach was sufficiently serious to entitle the owner to terminate the contract on 7 May 2021. The owner was entitled to damages for defective and incomplete work, assessed at $89,406.39 before credit, less a $23,200 credit for the unpaid portion of the contract price, resulting in $66,206.39 payable by the builder. The builder's cross application was dismissed because he provided no evidence to support his restitution claim and it...

Court Disposition

The owner's claim succeeded in part and the builder's cross application HB 21/43872 was dismissed.

Orders

  • ['Weijiang Xu also known as Jeff Xu must pay Wei Ling $66,206.39 immediately.' 'HB 21/43872 is dismissed.' 'In the event that a party wishes to bring a costs application, the costs application must be lodged in the Tribunal and served on the costs respondent within 14 days of the date of the orders in these...