Zeman v Bollard [2015] NSWCATCD 13

Zeman v Bollard [2015] NSWCATCD 13

The respondent elected not to terminate for the applicant's repudiation when he issued the notice of substantial breach and suspension on 23 September 2010, so the later notice dated 4 September 2012 was ineffective insofar as it purported to accept that repudiation. Any right to terminate under clause 30 based on...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
22 January 2015
Procedural Posture
Home Building Dispute Concerning Residential Building Work Under an HIA Cost Plus Contract / Principal Judgment After Hearing
Outcome
Application allowed; respondent ordered to pay the applicant $100,000.00, with directions for any costs application.
Legal Topics
['repudiation' 'termination for Substantial Breach' 'election Following Accrued Right' 'abandonment of Contract' 'defective and Incomplete Residential Building Work' 'statutory Warranties']
['building and Construction' 'contract Law' 'consumer Law'] ['repudiation' 'termination for Substantial Breach' 'election Following Accrued Right' 'abandonment of Contract' 'defective and Incomplete Residential Building Work' 'statutory Warranties']

Source-derived case record

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Procedural Posture

Home Building Dispute Concerning Residential Building Work Under an HIA Cost Plus Contract / Principal Judgment After Hearing

Legal Issues

  1. 1 ["Whether the respondent validly terminated the contract by notice dated 4 September 2012 by accepting the applicant's repudiation constituted by the solicitor's letter dated 16 September 2010." 'Whether the respondent validly terminated the contract under clause 30 of the contract based on the notice of substantial breach dated 23 September 2010.' 'Whether the contract was abandoned by the parties before commencement of the District Court proceedings.' 'Whether the applicant retained accrued rights to damages for defective work despite abandonment.' 'Whether defective building work constituted a breach when constructed, although the time for delivery or practical completion had not arisen.']

Ratio Decidendi

The respondent elected not to terminate for the applicant's repudiation when he issued the notice of substantial breach and suspension on 23 September 2010, so the later notice dated 4 September 2012 was ineffective insofar as it purported to accept that repudiation. Any right to terminate under clause 30 based on the 23 September 2010 notice had to be exercised within a reasonable time and expired no later than November 2010. The parties then took no steps to perform the 20 week contract for an inordinate period, and by their conduct had abandoned it before the District Court proceedings commenced in February 2011. Because accrued rights were not forgone and damages on abandonment were...

Court Disposition

Application allowed; respondent ordered to pay the applicant $100,000.00, with directions for any costs application.

Orders

  • ['The respondent, Craig Bollard is to pay to the applicant, Zanja Zeman the sum of $100,000.00 on or before 2 March 2015.' 'Any application for costs is to be made on or before 4 February 2015. Any application is to be in writing to the Tribunal supported by any evidence and submissions. The application and...