Form or content?
In the recent decision of Builtex Constructions Pty Ltd He  NSWCATAP 95, NSW Civil and Administrative Tribunal Appeal Panel dismissed the appellant Builder’s submissions that the respondent Owner repudiated the contract because the Owner failed to provide notice of dispute, hold a dispute resolution meeting, and give a proper notice of default to terminate the contract.
In the Tribunal below, orders had been made awarding the Owner more than $100,000 for breach of statutory warranty and dismissing the builder’s quantum meruit claim. The relevant contract was a Master Builders Association residential building contract.
The contract before the Appeal Panel was a Master Builders Association residential building contract. The relevant terms are summarised below:
Grounds of appeal and findings
The Builder relied on, inter alia, 3 grounds of appeal which each challenged that the contract was lawfully terminated, concerning:
The approach taken by the Tribunal was to look at the substance and effect of the communications, rather than merely how they were badged (or not badged). The cumulative effect is of course easier to see in hindsight. Parties in doubt can seek clarification from their counterparty as to whether communications are intended to be notices for the purpose of the contract, to seek to manage that risk.
Author: Christine Jones
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Builtex Constructions Pty Ltd v He  NSWCATAP 95
(1) Leave to appeal is refused. (2) The appeal is dismissed.
APPEAL – construction of building contract – whether notice of dispute given in accordance with the contract – whether notice of default given in accordance with the contract – whether contract validly terminated – exercise of costs discretion – leave to appeal
Civil and Administrative Tribunal Act 2013; Civil and Administrative Tribunal Act 2013; Civil and Administrative Tribunal Rules 2014; Home Building Act 1989
Apthorpe v QBE Insurance (Australia) Limited & Ors  NSWDC 135
TORTS – workplace injury on a domestic building site – plaintiff roofing labourer fell to ground from roof height after stepping on unsecured bridging planks between roof and a scaffolding platform – determination of liability of builder, scaffolder, fascia and guttering contractor and plaintiff’s employer the tiling contractor – differing assessment schemes for employer’s liability and occupier’s liability; DAMAGES – assessment of claimed heads of damage – Workers Compensation Act 1987 and Civil Liability Act 2002
The Sydney Building Company Limited v Sinac (No 2)  NSWCATAP 89
COSTS: no question of principle
Elhazouri v Subsidence Advisory NSW  NSWLEC 41
MINE SUBSIDENCE – compensation claim for damage to dwelling and other ancillary structures under now repealed Mine Subsidence Compensation Act 1961 – subsidence at least partial cause of damage claimed – dispute as to extent damage caused by subsidence – competing expert evidence from structural engineers – held causation of damage to dwelling and incorporated garage was mine subsidence – no evidence to support claim for damage to ancillary structures – two months to be allowed to parties to seek to resolve scope and methods of rectification of damage to dwelling MINE SUBSIDENCE – compensation claim for damage to dwelling under Coal Mine Subsidence Compensation Act 2017 not subject to proceedings – no findings with respect to claim under 2017 legislation COSTS – Applicant self-represented – Applicant entitled to limited costs consistent with approach in Cachia v The Hills Shire Council  NSWLEC 136 – contingent costs order appropriate to permit Respondent to make submissions on costs – if no request to be heard within 28 days, limited costs order in Applicant’s favour
Gill v Summit Building Design and Construction Pty Ltd  NSWCATCD 5
BREACH OF CONTRACT - repudiation– assessment of damages – work order – weight of evidence
Scarano v Palm Pools and Spas Pty Ltd  NSWCATAP 79
HOME BUILDING – Whether the Tribunal erred in failing to find that an agreed damages clause is a penalty clause – Whether the appellant should be granted leave to raise a ground on appeal which was not argued before the Tribunal –– Whether the Tribunal should have considered the appellant’s claim under the Australian Consumer Law instead of the Contracts Review Act
Webster v Tom  NSWCATAP 75
|APPEALS – home building claim against builder – allegation of home owners as to a misclassification of building site by an engineer not joined as a party by the owners – terms of builder’s engagement – agreed scope of works for builder - no error of law – competing expert evidence on ongoing cracking and the construction of piers - whether the Tribunal’s findings were not fair and equitable or against the weight of evidence – whether new evidence was reasonably available - no other grounds for leave to appeal – appeal dismissed
Tom v Jenkins  NSWCATAP 74
APPEALS – builder’s claim against engineer for indemnity in respect of builder’s liability to home owners for defective residential building work – builder’s claim based on allegations of negligence and misleading conduct - extension of time required to appeal – lack of procedural fairness – statutory interpretation of s 48K of the Home Building Act – lack of jurisdiction for the Tribunal to determine the builder’s claim – appeal dismissed.
Christine Jones, Partner - Construction & Infrastructure (Dispute Resolution)
T: +61 2 8083 0477
Divya Chaddha, Associate
T: +61 2 8083 0457
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.
Published by Christine Jones