SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Adapt Constructions Pty Ltd v Whittaker & Anor |
Citation: | [2015] ACTSC 188 |
Hearing Date: | 2 March 2015 |
DecisionDate: | 26 August 2015 |
Before: | Burns J |
Decision: | Leave to appeal is refused. |
Category: | Principal Judgment |
Catchwords: | CONTRACTS – Building, Engineering and Related Contracts – defective building work – damages – whether cost of demolition and rebuild reasonable – liquidated damages – rate of liquidated damages for delay ‘zero’ – whether intended to exclude claim for unliquidated damages for delay – procedural fairness – natural justice – credibility of witnesses. |
Legislation Cited: | Commercial Arbitration Act 1986 (ACT) s 38 |
Cases Cited: | Baese Pty Ltd v RA Bracken Building Pty Ltd (1990) 6 BCL 137 Brewarrina Shire Council v Beckhaus Civil Pty Ltd [2006] NSWCA 361 |
Texts Cited: | Trevor Thomas, ‘$Nil liquidated damages: An exhaustive remedy for delay under a construction contract?’ (2008) 24 BCL 82 Michael Hollingdale, ‘Designing and enforcing liquidated damages claims to maximise recovery’ (2005) 21 BCL 412 |
Parties: | Adapt Constructions Pty Limited (Appellant) Brad Whittaker (First Respondent) Narelle Luff (Second Respondent) |
Representation: | Counsel Mr S Whybrow (Appellant) Mr G Blank (Respondents) |
| Solicitors Bradley Allen Love Lawyers (Appellant) Sneddon Hall & Gallop (Respondents) | |
File Number: | SCA 83 of 2014 |
Decision under appeal: | Court/Tribunal: Institute of Arbitrators and Mediators Australia Before: Mr Bryan Ahern Date of Decision: 14 April 2014; 1 September 2014 Case Title: Arbitration of disputes between Adapt Constructions Pty Ltd and Brad Whittaker and Narelle Luff concerning Contract for Building a Home at 5 Sue Watt Place URIARRA ACT Interim Award; Arbitration of disputes between Adapt Constructions Pty Ltd and Brad Whittaker and Narelle Luff concerning Contract for Building a Home at 5 Sue Watt Place URIARRA ACT Final Award |
BURNS J:
Background
This matter concerns the construction of a residential building at Urriarra in the Australian Capital Territory (the Property). The appellant was the builder of the Property and the…
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- AGLC
- Adapt Constructions Pty Ltd v Whittaker and Luff [2015] ACTSC 188
- Case
- [2015] ACTSC 188
- Decision Date
CaseChat Overview and Summary
The court examined the nature of the contractual defects and the reasonable costs to rectify them. It considered whether the cost of demolition and rebuilding was a proportionate and reasonable measure of damages. The court also assessed the effect of the zero rate of liquidated damages on the ability to claim unliquidated damages for delay. It scrutinised the fairness of the process and the credibility of the evidence provided by both parties. The court found that the cost of demolition and rebuilding was a reasonable measure of damages. The zero rate of liquidated damages was not intended to exclude claims for unliquidated damages for delay. The court determined that the process was fair, and the credibility of the witnesses was adequately assessed.
The court concluded that the damages awarded were reasonable, and the rate of liquidated damages did not preclude a claim for unliquidated damages for delay. It found that procedural fairness and natural justice were observed. The purchasers were not liable for the cost of rectification. The court denied leave to appeal, upholding the decision that the purchasers were not responsible for the rectification costs.
Orders
Orders of the court
Leave to appeal is refused.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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