Su v Winning Builders Pty Ltd [2024] NSWCATCD 44

Su v Winning Builders Pty Ltd [2024] NSWCATCD 44

The Tribunal determined a work order was appropriate in the circumstances considering the builder's breaches and the relational breakdown, requiring rectification by a licensed third-party contractor with specified terms and inspector oversight. No direction would be included to move structural columns because, despite breach, rectification would be disproportionate. Delay damages for alternative accommodation were awarded, calculated to the date builder lost access to the site, as the loss was within contemplation of the parties at contract formation. Claims for contract price adjustment were rejected, the contract being fixed price and no written variation established.

Parties
First Applicant: Jian Yu Su; Second Applicant: Bao Ling Zhao; Respondent: Winning Builders Pty Ltd
Jurisdiction
Australia
Judgment Date
13 June 2024
Procedural Posture
Civil Building Dispute / Final Decision and Orders
Outcome
Orders for rectification works by third party contractor and payment of delay damages to applicants; no order for contract price adjustment; directions for parties to apply for costs.
Legal Topics
Statutory Warranties, Work Orders, Delay Damages, Rectification of Defects, Extensions of Time, Oral Variation, Contract Interpretation, Remoteness of Damages
Building and Construction Consumer Law Statutory Warranties Work Orders Delay Damages Rectification of Defects Extensions of Time Oral Variation +2 more

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Parties

Jian Yu Su

First Applicant

Bao Ling Zhao

Second Applicant

Winning Builders Pty Ltd

Respondent

Procedural Posture

Civil Building Dispute / Final Decision and Orders

Legal Issues

  1. 1 Whether Tribunal has discretion and jurisdiction to make a works order under s 48O(1)(c) Home Building Act 1989 NSW while the contract is on foot; Whether a work order should require a third party contractor, include direction to move structural columns, or cover incomplete and defective works; Whether applicants are entitled to delay damages; Whether applicants are entitled to a contract price adjustment; Whether various alleged oral variations to contract are established

Ratio Decidendi

The Tribunal determined a work order was appropriate in the circumstances considering the builder's breaches and the relational breakdown, requiring rectification by a licensed third-party contractor with specified terms and inspector oversight. No direction would be included to move structural columns because, despite breach, rectification would be disproportionate. Delay damages for alternative accommodation were awarded, calculated to the date builder lost access to the site, as the loss was within contemplation of the parties at contract formation. Claims for contract price adjustment were rejected, the contract being fixed price and no written variation established.

Court Disposition

Orders for rectification works by third party contractor and payment of delay damages to applicants; no order for contract price adjustment; directions for parties to apply for costs.

Orders

  • Within 28 days, respondent to pay applicants $15,342.16.
  • Work order made under s 48O(1)(c) Home Building Act 1989 for rectification works via licensed third party in terms set out in para [191] of Reasons, with inspector oversight and detailed conditions in annexures.